MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 November 2002
	DOCKET NUMBER:   AR2002077765

	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. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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 receive retired pay in the highest rank and pay grade he held, which is major/0-4 (MAJ/0-4).

APPLICANT STATES:  In effect, he provides retirement orders and his MAJ/0-4 promotion orders in support of his request.  

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

On 1 July 1990, he was released from active duty (REFRAD), by reason of reduction in force (RIF).  At the time, the applicant held the rank and pay grade of captain/0-3 (CPT/0-3), which he had attained on 1 April 1983, and he had completed a total of 11 years, 2 months, and 19 days of active military service in a commissioned officer status.  

On 2 July 1990, applicant entered in the Regular Army (RA) in an enlisted status and reentered active duty as a sergeant/E-5 (SGT/E-5).  The record shows that while serving on active duty in an enlisted status, the applicant retained a dual commissioned officer status in the United States Army Reserve (USAR).  On 
27 March 1992, the applicant was promoted to MAJ/04 in the USAR.  However, the record shows that he never held or served on active duty in this rank and pay grade. 

On 7 July 1995, the applicant’s retirement was announced in Department of the Army (DA) Orders Number S129-9, issued by the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia.  These orders directed the applicant’s retirement from active service and his discharge from his enlisted status on 31 October 1995.  It also directed his placement on the Retired List the following day, 1 November 1995, in the highest rank and pay grade he held and in which he satisfactorily served while on active duty, which was CPT/0-3.  

The DD Form 214 issued to the applicant on the date of REFRAD, 31 October 1995, shows that he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason length of service retirement. 

Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers.  It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. 

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.

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 receive retired pay in the highest rank and pay grade he held, which was MAJ/0-4.  However, it finds insufficient evidence to support this claim. 

2.  By law, commissioned officers are placed on the Retired List in the highest commissioned officer rank and pay grade in which they satisfactorily served on active duty for not less than six months.  Further, advancement of enlisted members to a commissioned officer rank and pay grade on the Retired List requires that the member actually held and satisfactorily served in that higher commissioned officer grade while on active duty.  Dual status service in a higher commissioned officer rank and pay grade in the USAR, while serving on active duty in an enlisted status, does not meet the satisfactory service provisions of the law.

3.  The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status.  It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.  

4.  The evidence of record further shows that while serving on active duty in an enlisted status, the applicant was promoted to MAJ/0-4 in the USAR.  However, it also confirms that he never actually held or served in that rank and pay grade while he was on active duty.  Thus, the Board finds that the applicant’s service as a MAJ/0-4 does not meet the satisfactory service provisions of the law.  Therefore, it concludes that the requested relief is not warranted in this case. 

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

__JNS __  _  SVW  _  __MHM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077765	
SUFFIX		
RECON		
DATE BOARDED	2002/11/19	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/10/31	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	139.0900	
2.		
3.		
4.		
5.		
6.