MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 March 2003
	DOCKET NUMBER:   AR2002083189

	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. Samuel A. Crumpler		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Shirley L. Powell		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 highest grade in which he satisfactorily served while on active duty.  

APPLICANT STATES:  In effect, that he has evidence that shows he served as a unit first sergeant (1SG) in three different units.  In support of his application, he provides orders awarding him a 1SG Special Qualification Identifier (SQI), copies of evaluation reports for the period July 1983 through October 1989, and a copy of a Personnel Qualification Record Part I (DA Form 2-A).  

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

On 31 January 1993, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  

On 16 March 1992, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 31 January 1993, in the rank and pay grade of SFC/E-7.  A Data for Retired Pay (DA Form 3713), dated 3 April 1992, 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 
10 October 1982, and that this was the highest rank and pay grade he was promoted to and held while serving on active duty.  Item 35 (Record of Assignments) shows that between 1983 and 1991, the applicant served in positions authorized the pay grade E-7, as a Special Agent, Plans Noncommissioned Officer, and Section Chief.  This item does not show that the applicant ever served in a position authorized a 1SG/E-8.  

Orders Number 094-245, dated 3 April 1992, issued by Headquarters, 
United States Army Signal Center and Fort Gordon, Fort Gordon, Georgia, directed the applicant’s REFRAD on 31 January 1993, and his placement on the Retired List the following day, 1 February 1993, in the rank and pay grade of SFC/E-7.  The separation document (DD Form 214) issued to him on 31 January 1993, 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.

The documents provided by the applicant show that he was awarded the SQI of M, indicating that he was qualified to perform 1SG duties, and evaluation reports for the period July 1983 through October 1989, which include comments indicating that he performed duties normally associated with a 1SG.  However, none of the evaluation reports list his Principle Duty Title as 1SG.  The duty positions for which he was evaluated coincide with the duty positions listed in Item 35 of his DA Form 2-1.

On 18 December 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 pay grade of 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 1SG/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 or that requires the performance of duties normally associated with the higher grade do not alone 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 pay grade of E-8 for the purpose of advancement on the Retired List.  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

__SAC__  __TSK _  __ SLP__  DENY APPLICATION 

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

INDEX

CASE ID	AR2002083189	
SUFFIX		
RECON		
DATE BOARDED	2003/03/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/01/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.  319	131.0900	
3.		
4.		
5.		
6.