PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 May 2000                   
	DOCKET NUMBER:   AR1999034497

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be advanced on the retired list to the highest grade he held, Master Sergeant (MSG), E-8.

3.  The applicant states that he was promoted to MSG in June 1989 and retired 31 October 1989.

4.  The applicant's military records show that he enlisted in the Regular Army on  8 October 1969.  He was promoted to Sergeant First Class (SFC), E-7 on          27 June 1983.  On 10 November 1988, he requested retirement to be effective    1 November 1989.  On 1 June 1989, he was promoted to MSG.  On 1 November 1989, he was placed on the retired list in the rank and grade of SFC, E-7.  

5.  The U. S. Total Army Personnel Command has stated that the applicant’s promotion orders had never been revoked.  The Defense Finance and Accounting Service has confirmed that he was first paid as an E-8 effective         1 June 1989 and continued to be paid as an E-8 until his retirement.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 states that soldiers who have an approved retirement are in a nonpromotable status and will not be promoted unless a request for withdrawal of their retirement application has been approved.  Soldiers who are promoted to grades E-7, E-8, or E-9 incur a 2-year service obligation.  This obligation will be from the effective date of promotion.  It must be completed before voluntary retirement.  A promoted individual may not be administratively reduced only to terminate a promotion service obligation.

7.  Title 10, U. S. Code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.

CONCLUSIONS:

1.  The Board concludes that a Government error and an injustice have occurred in this case.

2.  The applicant meets the eligibility criteria for advancement to MSG on the retired list.  However, the Government committed errors at the time he retired and at the time he was promoted to MSG.   He should never have been promoted to MSG in the first place.  Since he had an approved retirement, he was in a nonpromotable status.  In the second place, since the Government did promote him and allowed him to wear the rank of and be paid as a MSG, E-8, he should not have been allowed to retire prior to the completion of his 2-year service obligation.  Finally, the regulation does not permit a soldier to be administratively reduced only to terminate a promotion service obligation, which the Government did in this case in order to allow him to retire on 1 November 1989.

3.  The Board concludes that in light of the Government’s first two errors the applicant should have been retired as a MSG, E-8 effectively waiving the 2-year active duty service obligation.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was placed on the retired list on              1 November 1989 in the rank and grade of Master Sergeant, E-8.

2.  That the Defense Finance and Accounting Service pay to the applicant all retired pay due as a result of the aforementioned correction.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__aao___  __vbc___  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034497	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.06	
2.		
3.		
4.		
5.		
6.