MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 July 2002
	DOCKET NUMBER:   AR2002074764

	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. Thomas B. Redfern, III | | Member
| Mr. Roger W. Able | | 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 rank and pay grade in which he satisfactorily served on active duty.

APPLICANT STATES:  In effect, that he believes he is entitled to be advanced on the Retired List based on the guidance contained in Issue 3 of the Army Echoes Newsletter, published in 1999.  

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

On 31 July 1992, 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), and had completed a total of 22 years, 9 months, and 
10 days of active military service. 

On 13 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 July 1992, in the rank and pay grade of SFC/E-7.  

A Data for Retired Pay (DA Form 3713), dated 27 May 1992, prepared during his retirement processing contains the entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), and Item 8 (Highest Grade Held).  Item 17 (Date Placed on Retired List) verified that he would be placed on the Retired List, effective 
1 August 1992.  Item 10 (Retired Pay) confirms 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 
23 April 1985, and that this was the highest rank and pay grade he was promoted to and held while serving on active duty.

On 20 May 1992, Orders Number 141-11, published by Headquarters, 
509^th Personnel Services Company, Unit 15049, APO AP 96224, directed the applicant’s REFRAD on 31 July 1992, and his placement on the Retired List the following day, 1 August 1992, in the rank and pay grade of SFC/E-7.

The separation document (DD Form 214) issued to the applicant on the date of his separation, 31 July 1992, which he authenticated with his signature in 
Item 21 (Signature of Member Being Separated), confirms that he held the rank and pay grade of SFC/E-7 on the date of REFRAD.  

On 20 June 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB determined that the applicant was never promoted to any rank and pay grade above SFC/E-7 while serving on active duty.  Therefore, he was placed on the Retired List in the highest rank and pay grade that he satisfactorily held while on active duty. 

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 contention that he should be advanced to a higher rank and pay grade on the Retired List.  However, it finds insufficient evidence to support this claim. 

2.  The evidence of record confirms that the highest rank and pay grade that the applicant was promoted to, held, in which he satisfactorily served while on active duty was SFC/E-7.  As a result, he was appropriately placed on the Retired List in this rank and pay grade in accordance with the applicable law and regulation.  

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_ _  __TBF__  __RWA__  DENY APPLICATION

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

INDEX

CASE ID | AR2002074764
SUFFIX |
RECON |
DATE BOARDED | 2002/07/09
TYPE OF DISCHARGE | HD
DATE OF DISCHARGE | 1992/07/31
DISCHARGE AUTHORITY | AR 635-200 C12
DISCHARGE REASON | Retirement
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1.  319 | 131.0900
2. |
3. |
4. |
5. |
6. |