MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 July 2002
	DOCKET NUMBER:   AR2002070780

	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. Hubert O. Fry, Jr.		Member	
	Ms. Gail J. Wire		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, reconsideration of his request to be promoted to the rank and pay grade of staff sergeant/E-6 (SSG/E-6), effective  July 1986; that be placed on the Retired list in the rank of SSG/E-6, effective 
17 April 1999; and that he be provided all back pay and allowances due as a result. 

APPLICANT STATES:  In effect, that the original consideration of his case by the Board, that was summarized in Memorandum of Consideration (MOC) case number AR2001056777, dated 11 September 2001, did not include consideration of four recommendations for promotion memorandums and eight letters of support he now provides.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in MOC AR2001056777, dated 
11 September 2001, which was prepared to reflect the Board's original consideration of this case.  The applicant provides four recommendations for promotion memorandums.  This is considered a submission of new evidence that requires reconsideration by the Board. 

The promotion recommendation memorandums provided by the applicant confirm that he served in a position authorized as a SSG/E-6 and based on his performance in this position, he was recommended for promotion to SSG/E-6.  In addition, the memorandums commented on the applicant’s accomplishments, contributions to his unit, and his excellent duty performance while serving in military occupational specialty (MOS) 96B (Food Service Specialist), and indicated that his not being promoted was due to failures on the part of the system.  

In its original decision on this case, the Board noted that based on the available records there was no indication that the applicant served in positions authorized the pay grades of E-6 or E-7.  Also, that there was no evidence that the applicant was ever selected for or promoted to the pay grades of E-6 or E-7.  Thus, lacking evidence to show the applicant held a rank and pay grade above sergeant/E-5, the Board denied the requested relief.

Army Regulation 135-180 implements the statutory authorities governing the granting of retired pay to soldiers and former Reserve Component (RC) soldiers. Chapter 2 states, in pertinent part, that the Retired Activities Directorate, U.S. Army Reserve Personnel Command (ARPERSCOM) will screen each retirement applicant’s records to determine the highest grade held by him or her during his/her military service.  

Paragraph 2-11c of the regulation further provides that the retired grade of an enlisted member transferred to the Retired Reserve or discharged on or after 
25 February 1975, will be the highest grade held while on active duty or in an Reserve enlisted status for at least 185 days or 6 calendar months.

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 promoted and advanced on the Retired List to the rank and pay grade of SSG/E-6, and it carefully considered the recommendation memorandums he submitted as new evidence.  However, it still finds insufficient evidence to support this claim.  

2.  Notwithstanding the documentation provided by the applicant in support of his case, which indicates that his not being promoted was due to a failure on the part of unit personnel and the system, the evidence of record confirms that the highest rank and pay grade the applicant was promoted to, held, and in which he satisfactorily served during his military service was SGT/E-5.  His record further verifies that his transfer to the Retired Reserve and processing for retired pay was accomplished in accordance with applicable regulations.  Therefore, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the retirement process.  

3.  By law and regulation, a RC soldier is retired in the highest grade held at anytime while on active duty or in a Reserve enlisted status.  A thorough review of the applicant’s record revealed no orders promoting him to a pay grade higher than E-5 at anytime during military service and he has failed to provide independent evidence to the contrary.  While the Board notes that the applicant served and performed admirably in a position authorized as a SSG/E-6, service in a position alone does not satisfy the highest grade held or satisfactory service regulatory provisions for assignment of a higher retired grade in this case.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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__  __HOF__  __GJW__    DENY APPLICATION

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

INDEX

CASE ID	AR2002070780	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/23	
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.	131.0000	
2.		
3.		
4.		
5.		
6.