MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002
	DOCKET NUMBER:   AR2002076732

	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. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 sergeant first class/E-7 (SFC/E-7) on the Retired List.  

APPLICANT STATES:  In effect, that he has been retired for at least 10 years or more.  

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

On 30 November 1970, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6).

On 1 December 1969, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 30 November 1970, in the rank and pay grade of SSG/E-6.  

A Data for Retired Pay (AGPZ Form 977), dated 21 October 1970, prepared
during his retirement processing, contains the entry SSG/E-6 in Item 2 (Retired Grade), Item 7 (Highest Grade Held), and Item 18 (Retired Pay Grade), which confirmed that he would receive retired pay as a SSG/E-6. 

The applicant’s Enlisted Qualification Record (DA Form 20) confirms, in
Item 33 (Appointments and Reductions), that he was promoted to SSG/E-6 on 
28 January 1966, and that this was the highest rank and pay grade he held on active duty.

Department of the Army Special Orders Number 203, dated 21 October 1970, directed the applicant’s REFRAD on 30 November 1970, and his placement on the Retired List the following day, 1 December 1970, in the rank and pay grade of SSG/E-6.  The separation document (DD Form 214) issued to him on 
30 November 1970, confirms in Item 5a (Grade, Rate or Rank) and Item 5b 
(Pay Grade) that he held the rank and pay grade of SSG/E-6 on the date of his REFRAD.

On 22 July 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB determined the applicant should not be advanced to the rank and pay grade of SFC/E-7 on the Retired List because he was never promoted to or held that rank and pay grade while serving on active duty. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states, in pertinent part, that retirement will be in the Regular Army 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.  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.  

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 request that he be advanced to SFC/E-7 on the Retired List, but it finds an insufficient evidentiary basis to grant the requested relief.  

2.  By law, in order to advanced to a higher grade on the Retired List, a member must have satisfactorily served in that higher grade while on active duty as determined by the Secretary of the Army.  In order to meet this satisfactory service provision, a member must have actually been promoted to and held the higher grade while on active duty.  Serving in a position authorized the higher grade alone does not satisfy this satisfactory service provision of the law.  

3.  The evidence of record confirms that the highest rank and pay grade the applicant attained while serving on active duty was SSG/E-6.  Therefore, the Board concurs with the AGDRB determination that the applicant did not satisfactorily serve in the rank and pay grade of SFC/E-7 while on active duty.  Therefore, it concludes that the requested relief is not warranted in this case. 

4.  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.

5.  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 __  __INW __  __JAM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002076732	
SUFFIX		
RECON		
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1970/11/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.