MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 July 2002
	DOCKET NUMBER:   AR2002074792

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Roger W. Able		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 in which he satisfactorily served on active duty.

APPLICANT STATES:  In effect, that he served in numerous positions above his retired rank and pay grade while on active duty.  He claims that having met the requirements of Title 10 of the United States Code, section 3964, he now requests advancement on the Retired List. 

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

On 31 October 1991, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7), and had completed a total of 21 years, 6 months, and 
28 days of active military service. 

On 26 March 1991, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 31 October 1991, in the rank and pay grade of SFC/E-7.  

A Data for Retired Pay (DA Form 3713), dated 17 April 1991, prepared during his retirement processing, contains the entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), and Item 8 (Highest Grade Held).  Item 10 (Retired Pay) also confirmed that he would receive retired pay as a SFC/E-7. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in 
Item 18 (Appointments and Reductions), that he was promoted to SFC/E-7 on 
1 August 1983, with a date of rank of 25 July 1983, and that this was the highest rank and pay grade he was promoted to and held while serving on active duty.

On 27 March 1991, Orders Number 60-27, published by Headquarters, United States Army Intelligence Center, Fort Huachuca, Arizona, directed the applicant’s REFRAD on 31 October 1991, and his placement on the Retired List the following day, 1 November 1991, in the rank and pay grade of SFC/E-7.

The separation document (DD Form 214) issued to the applicant on the date of his separation, 31 October 1991, which he authenticated with his signature in 
Item 21 (Signature of Member Being Separated), confirms that he held the rank and pay grade of SFC/E-7 on the date of REFRAD.  

On 21 June 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB determined that the applicant was never promoted to any rank and pay grade above SFC/E-7 while serving on active duty.  Therefore, he was placed on the Retired List in the highest rank and pay grade that he satisfactorily held while on active duty. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and it states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  

Title 10 of the United States Code, section 3964, provides the legal authority for advancement on the Retired List and 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 in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.  A satisfactory service determination under this provision of the law requires that a member be promoted to and served in a higher rank and pay grade while serving on active duty, performing duties in a position authorized a higher rank and pay grade alone does not satisfy this requirement.

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 a higher rank and pay grade on the Retired List.  However, it finds insufficient evidence to support this claim. 

2.  The evidence of record confirms that the highest rank and pay grade that the applicant was promoted to, held, in which he satisfactorily served while on active duty was SFC/E-7.  As a result, he was appropriately placed on the Retired List in this rank and pay grade in accordance with the applicable law and regulation.  

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

_ _JHL_ _  __TBF__  __RWA__  DENY APPLICATION

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

INDEX

CASE ID	AR2002074792	
SUFFIX		
RECON		
DATE BOARDED	2002/07/09	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	139.0900	
2.		
3.		
4.		
5.		
6.