MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            11 August 1999
	DOCKET NUMBER:   AR1999014820

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John P. Infante		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 retired at the pay grade of E-7 with entitlement to all back pay and allowances from the date of 1 April 1997.

APPLICANT STATES:  That he accepted a voluntary reduction to the pay grade of E-5 in order to enlist in the Army National Guard; however, when he retired he was retired in the pay grade of E-5 instead of the pay grade of E-7, the highest grade he held while on active duty.  In support of his application he submits a copy of section 3963, Title 10, United States Code.

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

The applicant enlisted in the Marine Corps on 6 July 1973 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 June 1987.

On 7 September 1992 he was honorably discharged under the Special Separation Benefit option of the Voluntary Separation Incentive Program (VSIP). He had served 18 years, 9 months, and 9 days of total active service and was paid $67,665.38 in separation pay.  He was then transferred to the Marine Corps Reserve.

On 14 October 1993 he enlisted in the California Army National Guard in the pay grade of E-5 for a period of 3 years.  He subsequently entered active duty for a period of 1 month and 28 days and was honorably released from active duty in the pay grade of E-5 on 31 March 1997 due to sufficient service for retirement.  He was retired under section 3914 of Title 10, United States Code and was placed on the Retired list in the pay grade of E-5, effective 1 April 1997.  He had served 20 years, 1 month, and 1 days of total active service.

Title 10, United States Code, section 3964, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

Title 10, section 3963, provides, in pertinent part, that a Reserve enlisted member of the Army who retires under section 3914 after 30 September 1998 and at the time of retirement was serving on active duty in a grade lower than the highest grade held by the member while on active duty and was previously administratively reduced in grade not through the members own misconduct, as determined by the Secretary of the Army, shall be retired in the highest enlisted grade in which the member served on active duty (or the National Guard) satisfactorily, as determined by the Secretary of the Army. 

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.  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 the aforementioned requirement.

2.  Although the applicant retired prior to the effective date of section 3963       (30 September 1998), that section does not apply to the circumstances of his case.  He was not a Reserve member of the Army and was not administratively reduced as defined by that section.  Therefore, he was not entitled then, nor is he now entitled to be placed on the Retired list in the pay grade of E-7. 

3.  The applicant enlisted in the National Guard after being discharged from the Marine Corps Reserve and accepted the pay grade of E-5 as a condition of his enlistment.  Accordingly, he was properly retired in the grade he held at the time of his release from active duty.

4.  However, the applicant is entitled to apply for advancement on the Retired list to the pay grade of E-7 once he has a combined total of 30 years of active service and service on the Retired list.

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:

__jhk ___  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ___wm__  ____jpi__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014820	
SUFFIX		
RECON		
DATE BOARDED	1999/08/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306 	129.0400/HIGH GRADE HELD	
2.		
3.		
4.		
5.		
6.