MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 November 2002
	DOCKET NUMBER:   AR2002077004

	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. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Hubert O. Fry, 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 promoted to and that his retired rank be changed to the rank and pay grade of colone/0-6 (COL/0-6).

APPLICANT STATES:  In effect, that he should be promoted for his outstanding service to his country in a colonel’s position for 10 months.  Also, he claims that he should be promoted to COL/0-6 because he performed in an outstanding manner in an active campaign against an enemy in war.  In support of his application, he submits the following documents:  a Citation from the VII Corps commander; a Certificate of Appreciation and a Certificate of Commendation issued by the United States Strike Command; Bronze Star Medal orders, citation and certificate; a Vietnam Order of Battle article; and his Officer Qualification Record (DA Form 66). 

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

On 31 July 1966, he was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 22 years, 11 months, and 3 days of active military service. 

The applicant’s separation document (DD Form 214), which he authenticated with his signature on the date of his REFRAD, confirms that at that time he held the rank and pay grade of lieutenant colonel/05 (LTC/0-5).

The DD Form 214 also verifies that during his active duty tenure he earned the following awards:  National Defense Service Medal (1st OLC); Korean Service Medal; United Nations Service Medal; Armed Forces Reserve Medal; and Vietnam Service Medal.  

A Data For Retired Pay (AGPZ Form 977), dated 7 July 1966, prepared on the applicant during his retirement processing contains the entry LTC/0-5 in
Item 2 (Retired Grade), Item 4 (Active Duty Grade), Item 6 (Highest Grade Held), and Item 7 (Permanent Grade).  These entries verify that this was the rank and pay grade he held on the date of his REFRAD, and that it was the highest rank and pay grade he was promoted to and 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 LTC/0-5 on 1 August 1966.  

Title 10, United States Code, section 1370 (d) provides the legal authority for the assignment of retired grades to commissioned officers, and the rules for retirement in the highest grade held satisfactorily.  It states, in pertinent part, that in order to be eligible for voluntary retirement in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.  

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 promoted to and his retired grade changed to COL/0-6 because he served in a position which authorized that rank and pay grade for 10 months while engaged in a campaign against an enemy force.  However, the Board finds these factors alone do not provide a sufficient evidentiary basis to warrant the relief requested.

2.  The evidence of record confirms that the applicant was placed on the Retired List in the rank and pay grade of LTC/0-5, and that this is the highest rank he attained and in which he satisfactorily served while on active duty.  Therefore, his being placed on the Retired List in the rank and pay grade of LTC/05 was appropriate and accomplished in accordance with the applicable statutory provisions of the law.  

3.  By law, in order for an Army officer to retire in a commissioned officer grade above major/04, the officer must have been promoted to and satisfactorily served in the higher rank and pay grade for three years while still on active duty.  Service in a position authorized the higher rank and pay grade alone does not satisfy this satisfactory service provision of the law.  

4.  The Board wishes to congratulate and thank the applicant for his outstanding service to his country.  However, this combat service to his country, in a position authorized a higher pay grade does not provide a sufficient legal or regulatory basis for his promotion to or change of his retired rank and pay grade to 
COL/0-6.  Therefore, the Board is compelled to deny the requested relief. 

5.  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.

6.  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  _  __RWA_  ___HOF__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077004	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/26	
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.