MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 July 2002
	DOCKET NUMBER:   AR2002070113

	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. Karol A. Kennedy		Chairperson	
	Mr. Arthur O. Omartian		Member	
	Mr. Raymond J. Wagner		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 on the Retired List to the rank and pay grade of master sergeant/E-8 (MSG/E-8).

APPLICANT STATES:  In effect, that he was selected for promotion to MSG/E-8 and elected to retire instead of accepting the promotion.  He further states that prior to his advancement to MSG/E-8, the service obligation for promotion in order to retire in the higher grade changed from 6 months to 24 months.  

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

On 31 October 1978, he was honorably released from active duty (REFRAD) for the purpose of retirement after completing a total of 20 years and 23 days of active military service. 

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) at that time.  

On 1 May 1978, while assigned to Fort Sam Houston, Texas, the applicant submitted an Application For Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement, in the rank and pay grade of SFC/E-7, on 31 October 1978.  Item 32 (Remarks) of the DA Form 2339 confirms the applicant’s voluntary retirement was approved by the proper authority with an effective date of 1 November 1978.  

Promotion Orders 122-1, issued by the Department of the Army, dated 7 August 1978, promoted the applicant to MSG/E-8 with an effective date of 1 September 1978.  However, on 12 September 1978, the applicant submitted a declination of promotion to Department of the Army.  He indicated that he declined his promotion to MSG/E-8 and elected to retire on the date already established. 

Letter Orders #179-108, issued by Headquarters, Fort Sam Houston, Texas, dated 14 September 1978, authorized the applicant’s REFRAD on 31 October 1978 and his placement on the Retired List, in the retired grade of SFC/E-7, on  the following day.  

Army Regulation 600-200 prescribes the policy and procedures for career management of Army personnel.  Chapter 7, paragraph 7(p), in effect at the time, provided that individuals with approved voluntary retirement applications (other than those who applied for retirement in conjunction with ETS under the Qualitative Management Program) will be considered in a nonpromotable status.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a 
nonpromotable status and further that they will not be promoted unless a request for withdrawal of their retirement application has been approved.  

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 declined a promotion based on having an approved retirement.  

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 he should be advanced on the Retired List to the rank and pay grade of MSG/E-8, but it finds this claim lacks merit.  By law and regulation, enlisted members are eligible to be advanced on the Retired List to the highest rank in which they satisfactory served while on active duty.  

2.  The evidence of record confirms that the applicant’s voluntary retirement request was approved in May 1978, four months prior to the effective date of his promotion, which placed him in a nonpromotable status.  Further, he formally declined his promotion and elected instead to retire on his established retirement date, which resulted in the automatic revocation of his promotion.  Therefore, the Board finds the applicant does not meet the satisfactory service requirements of the law for advancement on the Retired List, and it concludes that relief is not warranted in this case. 

3.  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.

4.  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

__KAK__  __AOA__  __RJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070113	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/02	
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.	131.0900	
2.		
3.		
4.		
5.		
6.