MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 October 2002
	DOCKET NUMBER:   AR2002080375

	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. Curtis L. Greenway		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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 master sergeant/E-8 (MSG/E-8) on the Retired List.  

APPLICANT STATES:  In effect, that during his twenty-two years of military service he demonstrated professionalism while serving in first sergeant positions on numerous occasions while holding the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  He states that during Operation Desert Storm, he assumed a MSG/E-8 position, and that the responsibilities of this position included restoring the permanent party compound, and management of six houses for the General’s staff, VIP billeting, twelve family villas; and one hundred and fifty apartments.  In addition, he was responsible for supervising personnel from third party nations who worked on various construction and maintenance projects, and he was required to make all decisions in the absence of the detachment commander.  He also states that although it does not show in his record, he served as a first sergeant during retirement parades, field exercises, battalion inspections, and Inspector General inspections.  He concludes by stating that he believes that his accomplishments, performance record, and duty assignments will support and prove that he should be advanced to MSG/E-8 on the Retired List.  

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

On 31 July 1994, 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.

On 8 July 1993, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 31 July 1994, in the rank and pay grade of SFC/E-7.  A Data for Retired Pay 
(DA Form 3713), prepared during his retirement processing, contains the entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), and Item 10 (Retired Pay), which confirmed that he would receive retired pay as a SFC/E-7. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in
Item 18 (Appointments and Reductions), that he was promoted to SFC/E-7 on 
16 July 1985, and that this was the highest rank and pay grade he held on active duty.

Orders Number 136-59, dated 21 July 1993, issued by Headquarters, 
24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia, directed the applicant’s REFRAD on 31 July 1994, and his placement on the Retired List the following day, 1 August 1994, in the rank and pay grade of SFC/E-7.  The separation document (DD Form 214) issued to him on 31 July 1994, confirms in Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) that he held the rank and pay grade of SFC/E-7 on the date of his REFRAD.
On 3 October 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 MSG/E-8 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 MSG/E-8 on the Retired List, but it finds an insufficient evidentiary basis to grant the requested relief.  

2.  By law, in order to be 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 SFC/E-7.  Therefore, the Board concurs with the AGDRB determination that the applicant did not satisfactorily serve in the rank and pay grade of MSG/E-8 while on active duty.  Thus, 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

__CLG_  __RKS___  ___DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002080375	
SUFFIX		
RECON		
DATE BOARDED	2002/10/31	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1994/07/31	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.