MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 December 2001
	DOCKET NUMBER:   AR2001064200

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		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 to the rank and pay grade of sergeant first class/E-7 (SFC/E-7) on the Retired List. 

APPLICANT STATES:  In effect, that he was selected for promotion to SFC/E-7 and was never informed of this selection or given the opportunity to accept the promotion prior to his retirement.  He claims that his promotion to SFC/E-7, effective 13 December 1978, was authorized in Orders Number 198-1, dated 
1 November 1978, published by the United States Army Military Personnel Center (MILPERCEN), Alexandria, Virginia.  In support of his application, he provides an extract of an Army Times newspaper.

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

He served on active duty a total of 20 years, 6 months, and 9 days and on 
31 March 1978, he was honorably released from active duty (REFRAD), in the rank and pay grade of staff sergeant/E-6 (SSG/E-6), for the purpose of retirement.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SSG/E-6 on 23 June 1970, and this was the highest rank he held while on serving on active duty. 

On 24 January 1978, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting to be retired on 1 April 1978, in the rank and pay grade of SSG/E-6.  On 25 January 1978, his retirement application was approved by the proper authority.

A Data for Retired Pay (DA Form 3713) on file, dated 27 February 1978, which was prepared during the applicant’s retirement processing, confirms that at that time his active duty grade, retired grade, and the highest grade he attained while serving on active duty were all SSG/E-6.

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 on 31 March 1978, he was REFRAD under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.  It further confirms that he held the rank and pay grade of SSG/E-6 on the date of his separation and that on the following day he was placed on the Retired List in that rank and pay grade.  

In support of his application, the applicant submitted an extract from an Army Times newspaper, dated 8 May 1978, which contained the names of individuals who were selected for promotion and placed on the SFC/E-7 promotion list.  His first and last names were included in this list, however, no social security numbers were listed to provide confirmation that it was actually him.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets the policy and procedure for the voluntary retirement of soldiers based on length of service.  It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement.

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, 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 satisfactorily served in while on active duty.  

Paragraph 12-8d (Service Obligations-Promotions) states, in pertinent part, that soldiers who have an approved retirement are in a nonpromotable status and will not be promoted unless a withdrawal of retirement is approved.  

Paragraph 12-10 contains guidance pertaining to the loss of Department of the Army (DA) promotion list standing upon retirement approval.  It states, in pertinent part, that all noncommissioned officers (NCOs), in the ranks SSG/E-6 through master sergeant/E-8 (MSG/E-8), who are on a DA centralized promotion list will lose promotion list standing upon approval of their retirement.  It further states that the names of these NCOs will be removed from the promotion standing list and they will retire in the grade they currently hold. 

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 to the rank and pay grade of SFC/E-7 on the Retired List because he was selected for promotion to that grade and never given the opportunity to accept it prior to his retirement.  However, the Board finds this factor alone does not provide a sufficient evidentiary basis to warrant the requested relief. 

2.  By regulation, enlisted members retire in the grade they hold on the date of their REFRAD for the purpose of retirement.  Further, any NCO with an approved retirement is in a nonpromotable status and if they are on a DA promotion standing list, they will be administratively removed upon retirement approval.  

3.  The evidence of record clearly establishes that the applicant voluntarily requested retirement, in the rank and pay grade of SSG/E-6, to be effective 
1 April 1978, prior to being identified for promotion to SFC/E-7.  His promotion selection and placement on the DA standing list occurred subsequent to his retirement being approved and by regulation, this placed him in a nonpromotable status.  

4.  Since the applicant’s retirement was approved prior to his being selected for promotion, his name should have been administratively removed from the promotion standing list.  Therefore, his promotion selection and placement on the DA standing list were erroneous.  Further, since he was in a nonpromotable status, his not being afforded the opportunity to accept the promotion prior to retirement does not constitute an error or injustice. 

5.  By law and regulation, retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty.  The record confirms that the applicant was never actually promoted to, held, or served on active duty in the rank and pay grade of SFC/E-7.  Thus, he does not meet this satisfactory service criteria and he is not eligible for advancement on the Retired List. 

6.  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___  __TAP__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064200	
SUFFIX		
RECON		
DATE BOARDED	2001/12/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1978/03/31	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.