MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2002
	DOCKET NUMBER:   AR2002077590

	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 first sergeant/E-8 (1SG/E-8) on the Retired List. 

APPLICANT STATES:  In effect, that he accepted an administrative reduction from 1SG/E-8 to the rank and pay grade of sergeant first class/E-7 (SFC/E-7),
in order to accept an Active Guard/Reserve (AGR) active duty tour.  

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

He served on active duty a total of 20 years and 19 days until 31 October 1991, at which time he was honorably released from active duty (REFRAD), in the rank and pay grade of SFC/E-7, for the purpose of retirement.

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 1SG/E-8 on 29 June 1982, while serving in the Army National Guard (ARNG), not on active duty.  

Orders Number 183-129, dated 30 September 1982, issued by the Military Department of Arkansas, Office of The Adjutant General, Arkansas ARNG, authorized the applicant’s voluntary reduction from 1SG/E-8 to SFC/E-7.  This action allowed him to accept an active duty AGR position in that rank and pay grade.  His record contains no indication that he was ever promoted back to 1SG/E-8, and/or that he served in that rank and pay grade subsequent to his entry on active duty in an AGR status.  

The record contains a properly constituted separation document (DD Form 214), which was signed by the applicant on the date of his retirement.  This document shows that on 31 October 1991, he was REFRAD under the provisions of 
Title 10 of the United States Code, section 3914, chapter 12, Army Regulation 
635-200, by reason of length of service retirement.  It further confirms that he held the rank and pay grade of SFC/E-7 on the date of his separation, and that on the following day he was placed on the Retired List in that rank and pay grade.  

On 19 August 2002, the Army Grade Determination Review Board (AGDRB) considered the applicant’s case.  It denied the applicant’s advancement to 1SG/E-8 on the Retired List because he had never served in that rank and pay grade while on active duty, which is required under the provisions of the advancement law.  

Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List.  It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 
30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

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 10 USC 3961.  

Paragraph 12-6 contains the regulatory guidance on the advancement of enlisted soldiers on the Retired List, as authorized by 10 USC 3964.  It states, in pertinent part, that enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no provisions of law or regulation that provide for the advancement of an enlisted member who served in higher rank and pay grade in a Reserve Component, not on active duty.  

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 to the rank and pay grade of 1SG/E-8 on the Retired List.  However, it finds insufficient evidence to support this claim.  

2.  By law and regulation, retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty, when their active duty service and time on the Retired List equals 
30 years.  Service in a higher rank and pay grade in a Reserve Component, not on active duty, does not meet the satisfactory active duty service requirement of the law.  

3.  The evidence of record confirms that the applicant voluntarily accepted a reduction to the rank and pay grade of SFC/E-7 in order to enter active duty in an AGR status.  It also verifies that subsequent to his entry on active duty in an AGR status, he was never promoted to, held, or served in a rank and pay grade above SFC/E-7.  Therefore, the Board finds his advancement to 1SG/E-8 on the 
Retired List is not warranted.
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

__JHL __  __ RVO  _  __BJL __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002069343	
SUFFIX		
RECON		
DATE BOARDED	2002/08/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.