MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 June 2002
	DOCKET NUMBER:   AR2002069025

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                             records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his retired rank and pay grade be upgraded and that he be provided all back pay and allowances due as a result.

APPLICANT STATES:  In effect, that he was not promoted prior to his retirement because of the chain of command’s attitude towards promotions.  In support of his application, he submits the following documents:  a copy of his separation document (DD Form 214); his retirement application (DA Form 2339); a letter in regard to his creditable service from a Defense Finance and Accounting Service (DFAS) official, dated 4 December 1968; a statement of service (DD Form 13); and his retirement orders.

EVIDENCE OF RECORD:  The applicant's military records show:

On 29 February 1968, the applicant was honorably released from active duty (REFRAD), in the rank and pay grade of specialist six/E-6 (SP6/E-6), for the purpose of retirement.  At the time of his separation, he had completed a total of 20 years, 1 month, and 4 days of active military service. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in Item 18 (appointments and reductions) that he was promoted to the rank and pay grade of SP6/E-6 on 1 September 1963, and that this is the highest rank and pay grade he attained while serving on active duty.  In addition, there are no orders or other documents contained in his Military Personnel Records Jacket (MPRJ) that give any indication that he was ever promoted to, held, or served in a higher pay grade while he was serving on active duty.

A Data For Retired Pay (AGPZ Form 977), dated 4 January 1968, prepared on the applicant during his retirement processing contains the entry SP6/E-6 in Item 2 (Retired Grade), Item 6 (Highest Grade Held), and Item 17 (Retired Pay Grade), which verifies that this was the rank and pay grade he held on the date of his REFRAD, and that it was the highest rank and pay grade he was promoted to and held while serving on active duty.  This document further confirms that he was placed on the Retired List in the rank and pay grade of SP6/E-6 on 1 March 1968. 

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his REFRAD, 29 February 1968, confirms that he held the rank of SP6/E-6 on the date of his separation and was serving in military occupational specialty (MOS) 71C (Stenographer).  This document also confirms that during his active duty tenure he earned the following awards: Army Good Conduct Medal (6th Award); National Defense Service Medal; Korean Service Medal with 4 bronze service stars; Combat Infantryman Badge; United Nations Service Medal; World War II Victory Medal; and the Armed Forces Expeditionary Medal (Dominican Republic). 

Title 10, United States Code, Section 3961 provides the general rule for assigning a retired grade.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve member of the Army who retires other than for physical disability retires in the regular or reserve grade that he/she holds on the date of his retirement.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  The term “highest grade in which he served on active duty satisfactorily” does not apply to a member who simply served in a position calling for a higher rank and pay grade.  In order to meet the satisfactory service provisions of the law a member must have actually been promoted to, paid as, and served in the higher grade while on active duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that his chain of command’s attitude towards promotions hindered his promotion to a higher rank and as a result, his retired grade should be upgraded and he should be provided all back pay and allowances due as a result.  However, the Board finds insufficient evidence to support this claim. 

2.  By law, members are retired in the grade they hold on the date of their REFRAD, and in order to be advanced on the Retired List it must be determined that a member satisfactorily served on active duty in a higher grade.  To receive a satisfactory service determination under this statutory provision, a member must have been promoted to, paid as, and satisfactorily served in a higher pay grade while on active duty.

3.  The evidence of record confirms that the applicant was placed on the Retired List in the rank and pay grade of SP6/E-6 and that this is the rank and pay grade he held on the date of his REFRAD and was the highest rank he attained and in which he satisfactorily served while on active duty.  Lacking independent evidence to the contrary, the Board finds the applicant was placed on the retired list in accordance with applicable law and regulation, and it concludes there is  insufficient evidence to support grating the relief requested by the applicant. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

     JLP          AAO           RKS       DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069025	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.0400	
2.		
3.		
4.		
5.		
6.