MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 August 2002
	DOCKET NUMBER:   AR2002077019

	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. Raymond V. O’Connor, Jr.		Member	
	Ms. Barbara J. Lutz		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 staff sergeant/E-6 (SSG/E-6) on the Retired List.  

APPLICANT STATES:  In effect, that he be reinstated to the highest rank and pay grade he held while on active duty.  

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

On 30 September 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/E-5 (SGT/E-5).  

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in 
Item 18 (Appointments and Reductions), that he was promoted to SSG/E-6 on 
1 November 1980, and that this was the highest rank and pay grade he was promoted to and held while serving on active duty.  It also confirms that he was reduced to the rank and pay grade of SGT/E-5 on 10 October 1989, due to his own misconduct.  

On 15 July 1988, a Department of the Army (DA) bar to reenlistment was imposed on the applicant under the Qualitative Management Program (QMP) based on his record of sub-standard performance.  In addition, a DA Form 4187 (Personal Action Request), dated 18 December 1989, confirms the applicant was reduced to SGT/E-5, effective 10 October 1989, and an entry on his noncommissioned officer evaluation report (NCOER) ending in September 1989, confirms that he tested positive during a unit urinalysis screening during the rating period.  

On 17 July 1989, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 30 September 1991, in the rank and pay grade of SGT/E-5

A Data for Retired Pay (DA Form 3713), dated 30 July 1991, prepared during his retirement processing, contains the entry SGT/E-5 in Item 2 (Active Duty Grade), and Item 10 (Retired Pay) also confirmed that he would receive retired pay as a SGT/E-5.  Item 8 (Highest Grade Held) contains the entry SSG/E-6, which confirms this is the highest grade he held while serving on active.  

On 20 July 1991, Orders Number 211-531, issued by Headquarters, United States Army Infantry Center, Fort Benning, Georgia, directed the applicant’s REFRAD on 30 September 1991, and his placement on the Retired List the following day, 1 October 1991, in the rank and pay grade of SGT/E-5.

The separation document (DD Form 214) issued to the applicant on the date of his separation, 30 September 1991, confirms that he held the rank and pay grade of SGT/E-5 on the date of REFRAD.  

On 3 August 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement to SSG/E-6 on the Retired List.  The AGDRB based its decision on the applicant’s poor evaluation reports and on his testing positive during the unit’s urinalysis screening, which resulted in his reduction to SGT/E-5 in 1989.  In arriving at its decision, the AGDRB also considered the fact that a DA bar to reenlistment was imposed on the applicant for his poor duty performance, his overall record of service, and his disciplinary history. 

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 request that he be advanced to SSG/E-6 on the Retired List, but it finds an insufficient evidentiary basis to grant the requested relief.  

2.  The evidence of record confirms that the applicant was reduced to SGT/E-5 due to his own misconduct.  The Board also notes that the applicant’s poor performance of duty as a SSG/E-6 resulted in his receiving a DA imposed a bar to reenlistment under the provisions of the QMP.  Thus, the Board concurs with the determination of the AGDRB that the applicant’s service as a SSG/E-6 was unsatisfactory, and it concludes that his advancement to that rank and pay grade on the Retired List is not warranted. 

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 __  __ RVO  _  __BJL __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002077019	
SUFFIX		
RECON		
DATE BOARDED	2002/08/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.