MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 July 2002                  
	DOCKET NUMBER:    AR2002074964

	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. Ted S. Kanamine		Chairperson	
	Mr. John T.Meixell		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, promotion and advancement on the Retired List to the rank and pay grade of sergeant major/E-9 (SGM/E-9).

APPLICANT STATES:  In effect, that his retirement was mandatory upon his completion of 27 years of service, and he believes he qualifies to be promoted and advanced to SGM/E-9 on the Retired List based on his service.  In support of his application, he provides a copy of an Army Echoes Newsletter article on advancement on the Retired List and a copy of a Noncommissioned Officer Evaluation Report (NCOER), in which he was evaluated as a Food Service Supervisor.  

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

On 29 February 1984, he was released from active duty (REFRAD) for the purpose of retirement.  On that date he held the rank and pay grade of master sergeant/E-8 (MSG/E-8), and he had completed a total of 26 years, 11 months, and 8 days of active military service. 

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 MSG/E-8 on 16 February 1981, and that this is the highest rank he held while serving on active duty.  

On 29 November 1983, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting a retirement date of 1 March 1984, in the rank and pay grade of MSG/E-8.  Item 6 (Highest Grade Served on Active Duty) confirms that the highest rank and pay grade he attained while serving on active duty was also MSG/E-8.  

On 30 November 1983, the applicant’s release from active duty (REFRAD) and placement on the Retired List the following day was directed in Orders Number 230-11, issued by Headquarters, 1st Personnel Command, APO New York 09081.  This order also confirms that the effective date of his REFRAD was 
29 February 1984, and that his authorized retired rank and pay grade were MSG/E-8.

A Data for Retired Pay (DA Form 3713), dated 30 November 1983, that was prepared on the applicant during his retirement processing, contained the entry MSG/E-8 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), and Item 10 (Retired Pay Grade).  This document also confirms that he was  placed on the Retired List on 1 March 1984, and that he had completed a total of 26 years, 11 months, and 8 days active military service. 

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 29 February 1984, he was separated under the provisions of chapter 12, Army Regulation 635-200, for the purpose of retirement.  It further confirms that he held the rank and pay grade of MSG/E-8 on that date.

On 25 June 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB determined that he had never been promoted to any rank and pay grade above MSG/E-8.  Therefore, he was retired in the highest grade he satisfactorily held while on active duty.  

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 Title 10 of the United States Code, section 3961 (10 USC 3961). 

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 be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the retired list totals 30 years.  The legal authority for this action is provided by Title 10 of the Untied States Code, section 3964
(10 USC 3964). 

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 have been promoted to SGM/E-9 and advanced to that rank and pay grade on the Retired List based on his record of service.  However, it finds insufficient evidence to support this claim.  

2.  By law and regulation, enlisted soldiers are retired in the rank and pay grade they hold on the date of their REFRAD, and retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty, as determined by the Secretary of the Army.  In order to satisfy this requirement, a member must have been promoted to, held, and served in the higher rank and pay grade while on active duty, performing duties in a position authorized a higher pay grade does not satisfy this satisfactory service criteria of the advancement law.  
3.  The evidence of record confirms that the applicant held the rank and pay grade of MSG/E-8 on the date of his separation, and that this was the highest pay grade he attained while serving on active duty.  It also verifies that he was never actually promoted to, held, or served in a higher pay grade while he was on active duty, and the applicant has failed to provide any evidence to the contrary.

4.  In view of the facts of this case, the Board concludes that the applicant was properly retired in the rank and pay grade of MSG/E-8, and that he does not meet the satisfactory service provision of the advancement law.  Thus, he is not eligible for advancement to a pay grade higher than E-8 on the Retired List. 

5.  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.

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

__TSK__  __JTM__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074964	
SUFFIX		
RECON		
DATE BOARDED	2002/07/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1984/02/29	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319 	131.0900	
2.  310	131.0000	
3.		
4.		
5.		
6.