MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           7 March 2002
	DOCKET NUMBER:   AR2001065230

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		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, that he be advanced on the Retired List to the rank and pay grade of master sergeant/E-8 (MSG/E-8)

APPLICANT STATES:  In effect, that he served in a MSG/E-8 position for four years.  He states that he was a diabetic for 14 years and continued to meet his duty requirements.  Finally, he indicates that he deserves advancement on the Retired List and the Board should grant this request.  In support of his application, he submits the following documents: two noncommissioned officer Evaluation Reports (NCOER-DA Form 2166-7); Meritorious Service Medal (MSM) and Army Achievement Medal (AAM) Award Certificates; Bronze Star Medal orders; an undated letter, with the subject Special Consideration for Promotion to Master Sergeant that was signed by the applicant; and a 
11 September 1980 letter with the subject Retention on Active Duty, signed by Chief, Disability Section Retirement Branch, Total Army Personnel Command (PERSCOM). 

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

On 31 July 1992, the applicant was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 21 years, 6 months, and 25 days of active military service. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in block 18 (appointments and reductions) that he was promoted to the rank and pay grade of sergeant first class/E-7 (SFC/E-7) on 7 February 1986, and that this is the highest rank and pay grade he attained while serving on active duty.  In addition, there are no orders or other documents contained in his Military Personnel Records Jacket (MPRJ) that give any indication that he was ever promoted to, held, or served in a higher pay grade while he was serving on active duty.

A Data For Retired Pay (DA Form 3713), prepared on the applicant during his retirement processing contains the entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Held), and Item 10 (Retired Pay), which verifies that this was the rank and pay grade he held on the date of his REFRAD and that it was the highest rank and pay grade he was promoted to and held while serving on active duty.  This document further confirms that he was placed on the Retired List in the rank and pay grade of SFC/E-7 on 1 August 1992. 

The separation document (DD Form 214) issued to and signed by the applicant on the date of his separation confirms that he held the rank and pay grade of SFC/E-7 on the date of his separation and that he was serving in military occupational specialty (MOS) 74C (Automatic Data Telecommunications Center Operator).
The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement on the Retired List to the pay grade of E-8.  However, the AGRDB determined that the applicant was not eligible for advancement, under the provisions of Title 10, United States Code, Section 3964, because he was never promoted to, paid as, or served in a rank and pay grade above SFC/E-7 while on active duty and it denied his request.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  The term “highest grade in which he served on active duty satisfactorily” does not apply to a member who simply served in a position calling for a higher rank and pay grade.  In order to meet the satisfactory service provisions of the law a member must have actually been promoted to, paid as, and served in the higher grade while on active duty.

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 contentions that he should be advanced on the Retired List to the pay grade of MSG/E-8 because he served in a position which authorized that rank and pay grade for 4 years and served honorably although a diabetic.  However, the Board finds these factors alone do not provide sufficient evidentiary basis to warrant the relief requested. 

2.  By law, in order to be advanced on the Retired List it must be determined that a member satisfactorily served on active duty in a higher grade.  In order to receive a satisfactory service determination under this statutory provision, a member must have been promoted to, paid as, and satisfactorily served in a higher pay grade while on active duty.  

3.  The evidence of record confirms that the applicant was placed on the Retired List in the rank and pay grade of SFC/E-7 and that this is the highest rank he attained and in which he satisfactorily served while on active duty.  Lacking independent evidence to the contrary, the Board finds an insufficient evidentiary basis to show he satisfies the satisfactory service provisions of the advancement law.  Therefore, the Board finds insufficient evidence to grant the requested relief.  

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 this 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

__RVO__   _ _JPI__  __RKS     DENY APPLICATION

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

INDEX

CASE ID	A2001065230	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/07	
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.		
3.		
4.		
5.		
6.