MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 October 2002
	DOCKET NUMBER:   AR2002075776

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 promoted and advanced on the Retired List to the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that as a soldier who served his country faithfully for over 20 years, which included during a time of war, he was unfairly denied promotion to the next higher grade.  He claims that he performed in the capacity of a SFC/E-7 in numerous positions and believes that based on this service, he should have been promoted along with his peers.  He claims that he was made aware that he could appeal this issue by a recent article that appeared in the Army Echoes Newsletter provided to retirees.  

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

On 31 July 1988, he was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 20 years and 8 days of active military service.  

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in block 18 (Appointments and Reductions), that the highest rank and pay grade he attained while serving on active duty was staff sergeant/E-6 (SSG/E-6).  In addition, there are no orders or other documents contained in his Military Personnel Records Jacket (MPRJ) that give any indication that he was ever promoted to, held, or served in a higher rank or pay grade while he was serving on active duty.

A Data For Retired Pay (DA Form 3713), prepared on the applicant during his retirement processing, contains the entry SSG/E-6 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), and Item 10 (Retired Pay),  These entries verify that SSG/E-6 was the rank and pay grade he held on the date of his REFRAD, and that it was the highest he held while serving on active duty.  This document further confirms that he was placed on the Retired List in the rank and pay grade of SSG/E-6 on 1 August 1988. 

The separation document (DD Form 214) issued to and signed by the applicant on the date of his REFRAD confirms that he was promoted to the rank and pay grade of SSG/E-6, effective 1 August 1974, and that he held that rank and pay grade on the date of his separation.  

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 RA or Reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).  

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.

Paragraph 12-6 (Advancement on the Retired List) of Army Regulation 635-200, contains regulatory guidance on the advancement of enlisted soldiers on the Retired List.  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 RA enlisted member, who while serving on active duty in an enlisted status, also served in a dual status as a USAR commissioned officer.

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.  By law, soldiers retire in the rank and pay grade they hold on the date of their REFRAD for retirement, and in order to be advanced on the Retired List, a soldier must have satisfactorily served on active duty in a higher grade.  In order to receive a satisfactory service determination under this statutory provision, a member must have been promoted to, paid as, and satisfactorily served in a higher pay grade while on active duty.  

2.  The Board notes and certainly recognizes the applicant’s service to this country, and does not dispute his claim that he served in SFC/E-7 positions on numerous occasions during his active duty tenure.  However, these factors alone do not provide an evidentiary basis for promotion or advancement on the Retired List.  The evidence of record confirms that he was placed on the Retired List in the rank and pay grade of SSG/E-6, which is the highest rank he attained and in which he satisfactorily served while on active duty.  Lacking independent evidence to the contrary, the Board finds insufficient evidence to show he was ever promoted to SFC/E-7 while he was on active duty, or to show that he meets the satisfactory service provisions of the advancement law.  Thus, the Board finds no error or injustice related to the applicant’s retired rank, and it is compelled to deny the requested relief.  

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

__RVO__  __MKP  _  __AAO __ DENY APPLICATION 

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

INDEX

CASE ID	AR2002075776	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/01	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.0400	
2.		
3.		
4.		
5.		
6.