MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 May 02
	DOCKET NUMBER:   AR2001065642

	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. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 master sergeant/E-8 (MSG/E-8) on the Retired List.

APPLICANT STATES:  In effect, that he was on the promotion list for 3 years and was not promoted due to priority considerations that were given to soldiers that held combat arms specialties serving in critical positions.  He states that he chose to retire due to the uncertainty of his promotion to MSG.  He further states that the Board should approve his request because he is deserving of the promotion to MSG.  In support of his application, he submits a copy of his separation document (DD Form 214) and his Personnel Qualification Record
(DA Form 2-1).

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

On 30 November 1989, he was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 22 years and 7 days of active military service. 

The 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 sergeant first class/E-7 (SFC/E-7) on the date of his separation and that he was serving in military occupational specialty (MOS) 62B (Construction Equipment Repairer).

The separation document also shows that during his active duty tenure he earned the following awards and decorations:  National Defense Service Medal; Vietnam Service Medal; Republic of Vietnam Campaign Medal with 60 Device; Army Commendation Medal (1st OLC); Army Good Conduct Medal (7th Award); Army Service Ribbon; Overseas Service Ribbon (3); Noncommissioned Officer Professional Development Ribbon (3); Republic of Vietnam Gallantry Cross with Palm Unit Citation; Expert Marksmanship Badge (M-16); and Overseas Service Bars (2).

The applicant’s DA Form 2-1, which he reviewed on 14 April 1989, confirms in Item 18 (Appointments and Reduction), that he was promoted to the rank and pay grade of SFC/E-7 on 9 February 1982, and that this is the highest rank and pay grade he attained while serving on active duty. 

During the processing of this case an advisory opinion was obtained from the  Promotion Branch, Total Army Personnel Command (PERSCOM), Alexandria, Virginia.  PERSCOM advised this Board that the applicant was considered for promotion to MSG each year from 1985 through 1988, and was not selected.  In addition, PERSCOM had no record of the applicant being on a standing promotion list for Calendar Year 1987 and recommended that his request be denied.  

On 4 March 2002, a copy of the PERSCOM advisory opinion was forwarded to the applicant for his information and possible rebuttal.  To date, he has failed to respond. 

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 as determined by the Secretary of the Army.  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.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board notes the applicant’s contentions that he was on a standing promotion list to MSG/E-8 and was not promoted due to promotion priorities given to combat arms soldiers, but it finds insufficient evidence to support these claims.  

2.  By law and regulation, enlisted members of the Army are placed on the Retired List in the rank and pay grade they hold on the date of their REFRAD for the purpose of retirement and are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served, when their active service plus their service on the Retired List totals 30 years.  The evidence of record confirms that the highest rank and pay grade the applicant held while serving on active duty was SFC/E-7, and that he was properly placed on the Retired List in this rank and pay grade in accordance with applicable regulations in effect at the time.  Lacking independent evidence to the contrary, the Board is compelled to deny the requested relief. 

3.  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.

4.  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         WTM            CJP      DENY APPLICATION

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

INDEX

CASE ID	AR2001065642	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/02	
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.	131.0900	
2.		
3.		
4.		
5.		
6.