RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             27 January 2004                  
	DOCKET NUMBER:    AR2003091703

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Yolanda Maldonado 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, advancement to the rank and pay grade of sergeant major/E-9 (SGM/E-9) on the Retired List.  

2.  The applicant states, in effect, that he served satisfactorily in a dual capacity as a primary Brigade and Battalion Career Counselor from December 1984 through May 1986.  He claims this position was previously held by a SGM.  He also indicates that other positions he held included first sergeant and battalion operations sergeant.   

3.  In support of his application, the applicant provides a copy of his Personnel Qualification Record (DA Forms 2 & 2-1), evaluations reports for the positions 
in question, three certificates of achievement, a certificate for the Army Achievement Medal (AAM), a packet requesting attendance at the Recruiter/Retention course, and a copy of his separation document 
(DD Form 214).

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s record shows that on 1 November 1990, he was released from active duty (REFRAD) for the purpose of retirement.  On that date he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7), and he had completed 20 years, 9 months, and 1 day of active military service. 

2.  The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 10 April 1985, and that this is the highest rank he held while serving on active duty.  

3.  On 8 January 1990, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting a retirement date of 31 October 1990, in the rank and pay grade of SFC/E-7.  Item 6 (Highest Grade Served on Active Duty) confirms that the highest rank and pay grade he attained while serving on active duty was also SFC/E-7.  

4.  A Data for Retired Pay (DA Form 3713), dated 1 February 1990, that was prepared on the applicant during his retirement processing, contained the entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), and Item 10 (Retired Pay Grade).  This document also confirms that he was  placed on the Retired List on 1 November 1990, in the rank and pay grade of SFC/E-7.  

5.  The record also contains a properly constituted separation document 
(DD Form 214), which was authenticated by the applicant with his signature on the date of his REFRAD.  This document shows that he was separated under the provisions of chapter 12, Army Regulation 635-200, for the purpose of retirement. It further confirms that he held the rank and pay grade of SFC/E-7 on the date of his separation from active duty.  

6.  On 3 July 2003, the Army Grade Determination Review Board (AGDRB) staff returned the applicant’s request for advancement on the Retired List without action by the AGDRB.  The reason the applicant’s request was not referred to the AGDRB was that he retired as a SFC/E-7, the rank and pay grade he held on the date of his REFRAD, and his records failed to show he ever held a higher grade. 

7.  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 12-3b states, in pertinent part, that retirement will be in the Regular or Reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961). 

8.  Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the retired list totals 30 years.  The legal authority for this action is provided by Title 10 of the Untied States Code, section 3964
(10 USC 3964). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be advanced on the Retired List because he successfully performed in positions authorized the higher grade was carefully considered.  However, although it is clear the applicant served in positions authorized a higher grade, this factor alone does not satisfy the legal requirements necessary to support advancement on the Retired List.  

2.  By law, enlisted soldiers are retired in the rank and pay grade they hold on the date of their REFRAD, and retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty, as determined by the Secretary of the Army.  

3.  In order to satisfy the criteria for advancement, a member must have been promoted to, held, and served in the higher rank and pay grade while on active duty, performing duties in a position authorized a higher pay grade does not meet the satisfactory service criteria of the advancement law.  

4.  The evidence of record confirms that the applicant held the rank and pay grade of SFC/E-7 on the date of his REFRAD, and that this was the highest pay grade he attained while serving on active duty.  It also verifies that he was never actually promoted to, held, or served in a higher pay grade while he was on active duty, and he has failed to provide evidence to the contrary.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING
LE___  __AO___  __YM_______  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Arthur A. Omartian
		 CHAIRPERSON

INDEX

CASE ID	AR2003091703	
SUFFIX		
RECON		
DATE BOARDED	2004/01/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/11/01	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.