MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 July 2002
	DOCKET NUMBER:    AR2002069608

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. John T.Meixell		Member	
	Mr. Harry B. Oberg		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 he be advanced to the rank and pay grade of major/0-4 (MAJ/0-4) on the Retired List under the provisions of 
Title 10 of the United States Code, section 3964 (10 USC 3964).

APPLICANT STATES:  In effect, that he served on active duty as an enlisted soldier, warrant officer, and commissioned officer for over 20 years.  He was promoted to MAJ/0-4 on 1 December 1991, and retired on 1 March 1992.  He requests that he be advanced on the Retired List to the highest grade in which he served satisfactorily on active duty, which was MAJ/0-4.  His 30 year mark was reached on 1 March 2002, and since November 1991, he has been serving as adjunct faculty at the Army Command and General Staff College, Fort Leavenworth, Kansas.  In support of his application, he submits a copy of his promotion order to MAJ/0-4, his separation document (DD Form 214), and his adjunct faculty appointment certificate.  

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

On 29 February 1992, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of captain/0-3 (CPT/0-3), and had completed a total of 20 years and 1 day 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 CPT/0-3 on 
1 September 1983, and that this was the highest rank and pay grade he was promoted to and held while serving on active duty.  The last Officer Record Brief on file, dated August 1991, and last reviewed by the applicant on 15 October 1991, also confirms that his active duty grade was CPT/0-3.

Orders S215-11, dated 7 November 1991, published by PERSCOM, authorized the applicant’s retirement from active service, effective 29 February 1992, and his placement on the Retired List on 1 March 1992.  These orders also confirmed that the applicant’s retired grade of rank was CPT/0-3.  

A Data for Retired Pay (DA Form 3713), dated 7 November 1991, prepared during his retirement processing, contains the entry CPT/0-3 in the following items:  Item 2 (Active Duty Grade); Item 3 (Retired Grade); Item 8 (Highest Grade Held); Item 9 (Permanent Grade), and Item 10 (Retired Pay).  

On 9 November 1991, Orders Number 175-030, published by PERSCOM, authorized the applicant’s promotion to MAJ/0-4, effective 1 December 1991.  However, the instructions contained in this order specified that the promotion was not valid and the orders would be revoked if the officer concerned was not in a promotable status on the effective date of promotion.

Army Regulation 624-100 (Promotion of Officers on Active Duty), in effect at the time, prescribed the policies and procedures for the promotion of commissioned officers on active duty.  Paragraph 1-9 contained guidance on non-promotable officers.  It stated, in pertinent part, that any officer who had a retirement approved by PERSCOM prior to the effective date of promotion was in a 
non-promotable status.  

Title 10 of the United States Code, section 3964, provides the legal authority for advancement on the Retired List.  This provision of the law is applicable to warrant officers of the Army; enlisted members of the Regular Army; and Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty.  It states, in pertinent part, that retired soldiers covered by this law are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.  Retired commissioned officers are not covered by this provision of the law.  

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 request that he be advanced to the rank and pay grade of MAJ/0-4 on the Retired List under the provisions of 10 USC 3964, but it finds insufficient evidence to support this requested relief. 

2.  The evidence of record confirms that the highest rank and pay grade in which the applicant satisfactorily served while on active duty was CPT/0-3.  Further, he was in a non-promotable status on the effective date of his promotion to MAJ/0-4, based on having had his retirement previously approved by PERSCOM.  As a result, as indicated in his promotion order, his promotion to MAJ/0-4 was not valid and the promotion orders were revoked on that basis. 

3.  In addition, even had his promotion been valid, the advancement provisions of 10 USC 3964 are applicable only to enlisted and warrant officer members of the Army, and do not apply to retired commissioned officers.  Therefore, in view of the facts of this case, the Board finds that the requested relief is not warranted.  

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

__TSK__  __JTM__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069608	
SUFFIX		
RECON		
DATE BOARDED	2002/07/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/02/29	
DISCHARGE AUTHORITY	10 USC 3911 	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.  306	129.0400	
3.		
4.		
5.		
6.