MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002070788

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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 promoted and advanced on the Retired List.

APPLICANT STATES: In effect, that he served in the rank and pay grade of master sergeant/E-8 (MSG/E-8) sergeant major/E-9 (SGM/E-9) for two years and six months.  He states that while serving in these military occupational specialty (MOS) 54B (Chemical Operations Sergeant) positions authorized the higher grades, he received superior ratings and awards.

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

On 30 November 1992, he was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 20 years, 5 months, and 5 days of active military service. 

Promotion Order 110-60 dated 24 September 1987, issued by the Total Army Personnel Command (PERSCOM) confirms that the applicant was promoted to the rank and pay grade of sergeant first class/E-7 (SFC/E-7) on 1 November 1987, and that this is the highest rank and pay grade he attained while serving on active duty.  In addition, there are no documents contained in his Military Personnel Records Jacket (MPRJ) that suggest he ever held or served in a higher rank and pay grade while on active duty.

The separation document (DD Form 214), issued to and signed by the applicant on the date of his separation, confirms that he held the rank and pay grade of SFC/E-7 and was serving in MOS 54 (Chemical Operations Sergeant) at that time.  This document also that he earned the following awards during his active duty tenure:  National Defense Service Medal (2nd Award); Army Service Ribbon; Republic of Vietnam Cross of Gallantry with Palm Unit Citation; Vietnam Service Medal; Republic of Vietnam Campaign Medal with 60 Device; Overseas Service Ribbon (6th Award); Army Commendation Medal (2nd Award); Meritorious Service Medal; Good Conduct Medal (5th Award); Army Achievement Medal 
(3rd Award); Noncommissioned Officer Professional Development Ribbon (3rd Award); and Sharpshooter Marksmanship Badge (M-16 Rifle).  

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 he should be promoted and advanced on the Retired List based on his service in a positions authorized a higher rank and pay grade.  However, it finds insufficient evidence to support this claim.

2.  By law, to be advanced on the Retired List it must be determined that a member satisfactorily served on active duty in a higher rank and pay grade.  In order 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 rank and pay grade while on active duty.  Service in a position authorized a higher pay grade, and performing those duties associated with the higher rank does not alone serve as a basis for promotion or advancement on the Retired List.

3.  The evidence of record confirms that the applicant was placed on the Retired List in the rank and pay grade of SFC/E-7, and that this is the highest rank and pay grade he attained, and in which he satisfactorily served while on active duty. Lacking independent evidence to the contrary, the Board finds insufficient evidence to show the applicant meets the satisfactory service provisions of the advancement law.  Therefore, it concludes that the requested relief is not warranted in this case.

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

__RVO__  __RTD__  __KWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070788	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/25	
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.