MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 March 2002
	DOCKET NUMBER:   AR2001065290

	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. Lester Echols		Member	
	Mr. Thomas Lanyi		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 highest rank and pay grade he held.

APPLICANT STATES:  In effect, that since he held the rank and pay grade of first sergeant/E-8 (1SG/E-8), the provisions of Title 10 of the Untied States Code, section 3964 (10 USC 3964) should apply in his case.  He claims that he was asked to take a voluntary reduction to the rank and pay grade of sergeant first class/E-7 (SFC/E-7) in order to fill a training noncommissioned officer (NCO) position at the unit level.  In support of his application, he provides a copy of a promotion order to 1SG/E-8; a voluntary reduction order to SFC/E-7; and a retirement order.  

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

He served on active duty a total of 20 years, 4 months, and 15 days until 
31 January 1995, at which time he was honorably released from active duty (REFRAD), in the rank and pay grade of SFC/E-7, for the purpose of retirement.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of 1SG/E-8 on 1 November 1977, while serving in the Army National Guard (ARNG), not on active duty.  

Orders Number 28-2, dated 14 August 1981, issued by Headquarters, 
49th Armored Division Support Command, Texas ARNG, authorized the applicant’s voluntary reduction from 1SG/E-8 to SFC/E-7, which allowed him to accept an active duty AGR position in that rank and pay grade.  The applicant’s record contains no indication that he was ever promoted back to 1SG/E-8, and/or that he served in that rank and pay grade subsequent to his entry on active duty in an AGR status.  

The record contains a properly constituted separation document (DD Form 214), which was signed by the applicant on the date of his retirement.  This document shows that on 31 January 1995, 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 SFC/E-7 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.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in 10 USC 3961.  

Paragraph 12-6 contains the regulatory guidance on the advancement of enlisted soldiers on the Retired List, as authorized by 10 USC 3964.  It states, in pertinent part, that enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no provisions of law or regulation that provide for the advancement of an enlisted member who served in higher rank and pay grade in a Reserve Component, not 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 contention that the provisions of the advancement law should apply in his case.  However, it finds an insufficient evidentiary basis to support this claim.  

2.  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, when their active duty service and time on the Retired List equals 
30 years.  Service in a higher rank and pay grade in a Reserve Component, not on active duty, does not meet the satisfactory active duty service requirement of this law.  

3.  The evidence of record confirms that the applicant voluntarily accepted a reduction to the rank and pay grade of SFC/E-7 in order to enter active duty in an AGR status.  It also verifies that subsequent to his entry on active duty in an AGR status, he was never promoted to, held, or served in a rank and pay grade above SFC/E-7.  Therefore, the Board finds his advancement to 1SG/E-8 on the 
Retired List is not warranted.

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

__FNE__  ___LE___  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065290	
SUFFIX		
RECON		
DATE BOARDED	2002/03/28	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/01/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.