MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           13 DECEMBER 2001
	DOCKET NUMBER:   AR2001063794

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Regan K. Smith		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, advancement on the retired list to the highest grade that he held.  

APPLICANT STATES:  That he served on active duty for three years from 1960 to 1963, entered the Army Reserve in 1975, serving for 22 years, and retiring in 1997 with 25 years of active service.  He read an article in “Army Echos” stating that Army retirees may be advanced on the retired list to the highest grade in which they served satisfactorily on active duty.  That applies to Reserve enlisted members of the Army who, at the time of retirement, were serving on active duty or full time National Guard duty.  He is eligible for this advancement and submitted a request to this Board; however, he was notified that his request was denied because he was not on active duty at the time of his retirement.  He understood that he was always on active duty during his active Army and Reserve service, and was always ready to be called up to military duty at any time.   

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

The applicant was inducted into the Army on 5 December 1960 and released from active duty with an honorable characterization of service on                       16 November 1962.  He had 1 year, 11 months, and 12 days of service.  He was discharged from the Army on 30 November 1966.

The applicant enlisted in the Army Reserve on 4 February 1975 and continued as a member in the Army Reserve until his transfer to the Retired Reserve in 1995.

Orders that the applicant submitted with his initial application show that the applicant was promoted to Sergeant on 1 May 1977 and to Staff Sergeant on     22 August 1989.  Documents subsequent to the latter date show his rank as Staff Sergeant.  There is no evidence, nor has the applicant submitted any, to show that he was promoted beyond that rank.

A 24 October 1994 chronological statement of retirement points shows that the applicant had 25 years of total service, 20 years, 11 months, and 12 days of which were qualifying service for retired pay at age 60.  His service as reflected on that form shows that he was a member of the Army Reserve.  On                 26 October 1994 the applicant received a notification of eligibility for retired pay at age 60 (twenty year letter).  

On 11 April 1995, the applicant, a Staff Sergeant assigned to the 344th General Hospital at Fort Totten, New York, requested transfer to the Retired Reserve with special separation pay.  A 26 April 1995 order published by Headquarters,       77th Army Reserve Command (ARCOM) on 26 April 1995 shows that the applicant was transferred to the Retired Reserve based on his maximum years of service on 11 April 1995.
The applicant submits with his application a certificate of retirement showing that he was retired from the Army on 28 February 1997.

In a 14 November 2000 letter to the Army Reserve Personnel Command, a lieutenant colonel stated that he served with the applicant until he left the Reserve in 1997 and that the applicant was limited in his opportunity to be promoted to Sergeant First Class.  He requested that the applicant be considered for promotion to Sergeant First Class.

On 15 March 2001, in response to his initial application to this Board, he was informed that the law referred to in the “Army Echos” article (Title 10, U.S.C, Section 3964) applied to Reserve members of the Army who, at the time of retirement were serving on active duty or in the case of National Guard members, on full time National Guard duty; and that his records showed that he was retired as a Reserve of the Army not on active duty at the time.  Consequently, he was not eligible for advancement on the retired list.  He was informed that his application was filed without action.   

Active duty is defined as full-time duty in the active military service of the United States.  The term is applied to all Army National Guard of the United States and U.S. Army Reserve soldiers ordered to duty under Title 10, U.S.C., other than for training.  

Active status is defined as the status of soldiers assigned to the Selected Reserve (Troop Program Unit, Active Guard/Reserve, Individual Mobilization Augmentee), the Individual Ready Reserve, and the Standby Reserve (Active).

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 applicant was a Reserve soldier assigned to a Reserve troop program unit in New York at the time of his transfer to the Retired Reserve in 1995.  He was not on active duty but in an active Reserve status; consequently, the provisions of Title 10, U.S.C, section 3964, do not apply to him.  He is not entitled to be advanced on the retired list.

2.  Furthermore, the applicant was a Staff Sergeant at the time of his transfer to the Retired Reserve.  Even had he been on active duty at the time of his retirement, he would have had to serve satisfactorily in the higher grade (Sergeant First Class) while on active duty in order to be advanced on the retired list in that grade.  He did not serve on active duty in the rank of Sergeant First Class, nor is there evidence that he was ever promoted to that rank.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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 that 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

__SAC __  __MDM _  __RKS __  DENY APPLICATION

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

INDEX

CASE ID	AR2001063794	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011213	
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.	129.04	
2.	306	
3.		
4.		
5.		
6.