MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 October 2002
	DOCKET NUMBER:   AR2002075611

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 his retired rank and pay grade be changed to master sergeant/E-8 (MSG/E-8).  

APPLICANT STATES:  In effect, that he received false and misleading information from military personnel staff at Fort Sam Houston, Texas.  He claims that he was selected for promotion to MSG/E-8 in 1974.  In the fall of 1974, he was informed that he was receiving orders for a remote assignment in Germany. Military personnel staff erroneously advised him that if he accepted the promotion, he would have to stay in the Army for two more years.  He later discovered this was not true, and he could have stayed six months more and then retired.  

The applicant also states, in effect, that at the time, he had a thirteen year old son with an attention deficit/hyperactive disorder and behavioral problem.  He states that there were no facilities to care for his son at the projected assignment location, and his psychologist was of the opinion that separating him from his family would adversely affect him emotionally and academically.  Alternately, he was faced with the prospect of going to Germany without his family, which would have left his wife to cope with their handicapped son and their two toddlers, and working full time to supplement their income.  After much soul searching, he made the only decisions he felt he could, and he retired as a sergeant first class/E-7 (SFC/E-7).  

The applicant concludes by indicating that subsequent to his retirement, he discovered his promotion was published in the Army Times, and based on the circumstances he presents, he requests reconsideration of his present retired rank. 

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

On 31 December 1974, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of SFC/E-7 and he had completed a total of 20 years and 28 days of active military service. 

On 1 July 1974, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting that he be retired on 31 December 1974, in the rank and pay grade of SFC/E-7.  A Data for Retired Pay (DA Form 3713), dated 
18 November 1974, prepared on him 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 Attained). This document also verifies that the applicant was placed on the Retired List on 1 January 1975 and that he would receive retired pay as a SFC/E-7.  

On 11 November 1974, Letter Order Number 1253, published by Brooke Army Medical Center, Fort Sam Houston, Texas, directed the applicant’s REFRAD on 31 December 1974 and placement on the Retired List on 1 January 1975, in the rank and pay grade of SFC/E-7.  

On 2 December 1974, Special Orders Number 234, published by Headquarters, Department of the Army (DA), provided the authority for the applicant’s promotion to MSG/E-8, effective 1 January 1975.  These orders contained specific instructions that indicated that individuals promoted automatically incurred a regulatory service obligation in accordance with paragraph 7-52, Army Regulation 600-200.  

The applicant’s promotion to MSG/E-8 was never entered in his Personnel Qualification Record (DA Form 2-1), which would indicate he was never formally and officially promoted to that rank and pay grade. The last promotion recorded in his record is SFC/E-7, with a date of rank of 13 February 1969.  In addition, his Military Personnel Records Jacket (MPRJ) contains no orders or documents that show that he ever attempted to withdraw his approved retirement in order to accept the promotion to MSG/E-8 and/or to complete the 2 year service obligation it required. 

On 31 December 1974, the applicant was REFRAD under the provisions of chapter 12, Army Regulation 635-200, for the purpose of voluntary retirement.  The separation document (DD Form 214) issued to the applicant on the date of his separation from active duty, which he authenticated with his signature, confirms that he held the rank and pay grade of SFC/E-7 on the date of his REFRAD and that he was placed on the Retired List the following day in that rank and pay grade.

Army Regulation 600-200, in effect at the time, prescribed the policies, responsibilities, and procedures pertaining to the career management of Army enlisted personnel.  Chapter 7 provided the Army’s promotion policy, and paragraph 7-52 contained guidance on the acceptance of a promotion.  It stated, in pertinent part, that individuals promoted to the grade of E-7, E-8, or E-9 would incur a 2 year service obligation prior to non-disability voluntary retirement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 contains the policies and procedures pertaining to voluntary retirement.  Paragraph 12-8 outlines specific eligibility requirements. Paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a non-promotable status and they will not be promoted unless a request for a withdrawal of their retirement application is approved.  Paragraph 12-8d(1) states, in pertinent part, that individuals who are promoted to pay grade of E-7, E-8, or E-9, incur a two year service obligation and this obligation must be completed prior to voluntary retirement.  
Title 10 of the United States Code, section 3961, provides the legal authority for retirement grades.  It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement.  Section 3964 provides the authority for advancement on the Retired List and 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.  

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 his retired rank and pay grade should be changed to MSG/E-8 because he was misled by personnel officials at the time of his retirement processing.  However, the Board finds insufficient evidence to support this claim.  

2.  The regulation, in effect at the time, required individuals promoted to the grade of E-7, E-8, or E-9 to incur a 2 year service obligation prior to non-disability voluntary retirement.  Individuals with an approved retirement were required to withdraw their retirement prior to accepting promotion.  Under current regulations, this 2 year service obligation is still applicable, and members are placed in a non-promotable status once a retirement application is approved.  As a result, any subsequent promotion is invalid unless a request to withdraw the retirement is approved.  

3.  The applicant has failed to provide evidence to show that his failure to withdraw his retirement in order to accept the promotion to MSG/E-8 was the result of being misled by local personnel officials.  Further, there is no evidence suggesting that he even attempted to withdraw his approved retirement application in order to accept this promotion.  In the opinion of the Board, it is clear that the applicant elected to decline the promotion to MSG/E-8 so that he could proceed with his retirement as scheduled and not incur the 2 year service obligation.  

4.  By law, 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 in which they satisfactorily served while on active duty, as determined by the Secretary of the Army (SA).  However, because the applicant never served on active duty in the rank and pay grade of MSG/E-8, he is not eligible for advancement to that grade under the provisions of 10 USC 3964.  

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

__RVO__  __MKP  _  __AAO __ DENY APPLICATION 

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

INDEX

CASE ID	AR2002075611	
SUFFIX		
RECON		
DATE BOARDED	2002/10/01	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1974/12/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.