MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 June 2002
	DOCKET NUMBER:   AR2002072663

	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. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		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 on the Retired List to the rank and pay grade of master sergeant/E-8 (MSG/E8).

APPLICANT STATES: In effect, that he was promoted to the rank of MSG and served in that rank for 1 month prior to his retirement.  He further states that his time served as a MSG, the highest rank he held on active duty, qualifies him for advancement on the Retired List.  In support of his application, he submits the following documents:  Leave and Earnings Statement (DA Form 3686), dated September 1982; retirement orders; mobilization orders for active duty from a retired status; and an Enlisted Evaluation Report (DA Form 2166-6).

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

The applicant retired in the pay grade of E-7 on 31 October 1982.  He served in military occupational specialty (MOS) 11B (Infantryman) and he earned the following awards during his active duty tenure: Good Conduct Medal (7th Award); National Defense Service Medal; Combat Infantryman Badge; Bronze Star Medal; Air Medal; Soldier’s Medal; Bronze Star Medal with “V” Device; Army Commendation Medal (4th Award) with “V” Device; Republic of Vietnam Campaign Medal with 60 Device; Republic of Vietnam Cross of Gallantry with Palm Unit Citation; and Vietnam Service Medal with 1 silver service star.

On 16 August 1982, while assigned to Fort Leonard Wood, Missouri, the applicant submitted his application for voluntary retirement.  On 17 August 1982, Headquarters, US Army Training Center Engineer and Fort Leonard Wood, Missouri, approved his application for voluntary retirement and issued Orders Number 229-11, which directed the applicant’s retirement, effective 31 October 1982, and his placement on the Retired List, in the rank and pay grade of sergeant first class/E-7 (SFC/E-7), the following day.

The LES provided by the applicant for the pay period 1 through 30 September 1982, contains an entry that indicates he was promoted to MSG/E-8 on 
1 September 1982, and paid in that rank and pay grade for that pay period. 

The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement to the rank and pay grade of MSG/E-8 on the Retired List.  On 2 May 2002, the AGRDB convened to consider the applicant’s request and it determined after a review of his Official Personnel Military File (OMPF) that his promotion to the pay grade E-8 could not be verified.  The AGDRB found that even had the promotion taken place, it would have been invalid because the applicant would have been in a non-promotable status based on his approved retirement and therefore, his service in the rank and pay grade of MSG/E-8 could not be considered satisfactory.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 12 contained the policy, procedure pertaining to voluntary retirement.  It also contained specific eligibility requirements and stated, in pertinent part, that soldiers who have an approved retirement are in a non-promotable status and they will not be promoted unless a request for a withdrawal of their retirement application is approved.  Further, individuals who are promoted to pay grade of E-7, E-8, or E-9, incur a two year service obligation and this obligation must be completed prior to voluntary retirement.  

Title 10 of the United States Code, section 3961, provides the legal authority for retirement grades.  It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement.  Section 3964 provides the authority for advancement on the Retired List and states, in pertinent part, that retired soldiers 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.  

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 based on being promoted to and paid as a MSG/E-8.  However, it finds insufficient evidence to support this claim. 

2.  The evidence of record confirms that the applicant voluntarily submitted his application for retirement on 16 August 1982, and it was approved in retirement orders issued on 17 August 1982.  These orders directed his retirement, effective 31 October 1982, and his placement on the Retired List, in the rank and pay grade of SFC/E-7, on the following day.

3.  By regulation, members are automatically placed in a non-promotable status upon approval of their retirement and those on HQDA promotion lists are automatically removed and retired in the grade they currently hold.  Further, the law stipulates that members are eligible to be advanced on the Retired List when it is determined that they satisfactorily served in a higher rank and pay grade while on active duty, when their active duty service and time on the Retired List equals 30 years.  

4.  Based on the applicant’s approved retirement, he was placed in a 
non-promotable status on 17 August 1982, the date his retirement was approved. Thus, any subsequent promotion to MSG/E-8 would have been invalid and any active duty service performed in that rank and pay grade could not be considered satisfactory.  Therefore, the Board concurs with the determination of the AGDRB that the applicant’s service in the rank and pay grade of MSG/E-8 was not satisfactory, and it concludes that relief is not warranted in this case. 

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

__FNE__  __RWA__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072663	
SUFFIX		
RECON	2002/06/11	
DATE BOARDED	YYYYMMDD	
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.