MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 November 2002
	DOCKET NUMBER:   AR2002075900

	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. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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 rank and pay grade of master sergeant/E-8 (MSG/E-8).

APPLICANT STATES:  In effect, that in accordance with Title 10, United States Code, Section 3964, his active service plus his service on the Retired List exceeds 30 years, and he is now eligible for advancement to the highest grade  he held satisfactorily while on active duty.  He further states upon his retirement, he was reduced to the rank of SFC/E-7 because he did not complete his 2 year service obligation.  In support of his application, he submits a copy of his retirement orders, promotion orders to MSG/E-8, and a certificate of his promotion to MSG/E-8.

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

On 31 October 1982, he was honorably released from active duty (REFRAD) for the purpose of retirement after completing a total of 20 years and 19 days of active military service. 

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) at that time.  

On 18 November 1981, while assigned to Fort Monmouth, New Jersey, the applicant submitted an Application For Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement, in the rank and pay grade of SFC/E-7, on 1 November 1982.  On 23 November 1981, his application was approved.

Orders Number (#) 103-3, issued by Headquarters, US Army Communications and Electronics Command, Fort Monmouth, New Jersey, dated 27 May 1982, authorized the applicant’s REFRAD on 31 October 1982, and his placement on the Retired List the following day, 1 November 1982, in the retired rank and pay grade of SFC/E-7.

Promotion Orders 114-38, issued by the Department of the Army, dated 2 August 1982, authorized the applicant’s promotion to MSG/E-8 with an effective date of 
1 September 1982.  However, the instructions contained in this order specified that the promotion would not be valid and would be revoked if the soldier concerned was not in a promotable status on the effective date of promotion. 

On 11 July 2002, the Army Grade Determination Board (AGRDB) denied the applicant’s request to be advanced on the Retired List after determining that he was not in a promotable status on the effective date of his promotion.  Therefore, the AGRDB found he was not eligible for advancement, under the provisions of Title 10, United States Code, Section 3964.

Army Regulation 600-200 prescribes the policy and procedures for career management of Army personnel.  Chapter 7, paragraph 7(p), in effect at the time, provided that individuals with approved voluntary retirement applications (other than those who applied for retirement in conjunction with ETS under the Qualitative Management Program) will be considered in a nonpromotable status.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.

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 on the Retired List to the rank and pay grade of MSG/E-8, but it finds this claim lacks merit.  By law and regulation, enlisted members are eligible to be advanced on the Retired List to the highest rank in which they satisfactory served while on active duty.  

2.  The evidence of record confirms that the applicant’s voluntary retirement request was approved in November 1981, ten months prior to the effective date of his promotion, which placed him in a nonpromotable status in accordance with the applicable regulatory guidance.  It further confirms, that his promotion occurred after his approved retirement and his promotion to MSG was invalid. Therefore, the Board finds the applicant does not meet the satisfactory service requirements of the law for advancement on the Retired List, and it concludes that relief is not warranted in this case. 

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

__JNS__  ___SVW___  __MHM  __  DENY APPLICATION

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

INDEX

CASE ID	AR2002075900	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/19	
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.	131.0000	
2.		
3.		
4.		
5.		
6.