MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 November 2002
	DOCKET NUMBER:   AR2002080436

	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. Arthur A Omartian		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 major/E-9 (SGM/E-9).

APPLICANT STATES:  In effect, that he was promoted to the rank of SGM while on active duty and he subsequently retired in the rank and pay grade of master sergeant/E-8 (MSG/E-8) because he failed to satisfy his time in grade service obligation.  He states that he has been retired for 10 years, and he is now eligible for advancement on the Retired list.  In support of his application, he submits his separation document (DD Form 214), two pay and allowance computer printouts, a Certificate Of Retirement, three Letters of Congratulations acknowledging his promotion selection to SGM/E-9, and a copy of an article from the Army Times that contains a promotion list that includes his name and promotion sequence number for promotion to SGM/E-9.  

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

On 31 October 1986, he was honorably released from active duty (REFRAD), for the purpose of retirement, after completing a total of 20 years and 17 days of active military service.  The DD Form 214 issued to and signed by the applicant on the date of his separation confirms that he held the pay grade of E-8 the time of his REFRAD.  His Personnel Qualification Record (DA Form 2-1) and a Data For Retired Pay (DA Form 3713) on file both show that the highest pay grade he attained while serving on active duty was E-8.  Further, his record contains no orders showing he was promoted to SGM/E-9.  

There is a Total Army Personnel Command (PERSCOM) memorandum, on file, Subject:  Request For Waiver of Service Obligation, dated 17 September 1986, which was signed by the Chief, Separations and Appeals Branch.  It confirms that the applicant’s voluntary retirement was erroneously approved by the local retirement approval authority.  It further indicates that this approval was invalid because the applicant failed to inform local personnel officials of his existing service obligation for the Sergeants Major Academy.  However, it also shows that the submitted a declination statement for promotion to SGM/E-9 in order to avoid attending the Sergeants Major Academy, and that based on this PERSCOM officials approved his retirement for 1 November 1986.

On 17 October 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement to the rank and pay grade of SGM/E-9 on the Retired List.  It found he had an approved retirement at the time of his promotion selection and that he voluntarily declined the promotion to avoid attending the Sergeants Major Academy and incurring a two-year service obligation.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 contains the policy, procedure pertaining to voluntary retirement and paragraph 12-8 outlines specific eligibility requirements. Paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a non-promotable status and they will not be promoted unless a request for a withdrawal of their retirement application is approved.  Paragraph 12-8d(1) states, in pertinent part, that individuals who are promoted to pay grade of E-7, E-8, or E-9, incur a two year service obligation and this obligation must be completed prior to voluntary retirement.  

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  In order to meet the satisfactory service provisions of the law a member must have actually been promoted to, paid as, and served in the higher grade while on active duty.

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 contention of the applicant that he was promoted to the rank of SGM prior to his retirement and he is now eligible for advancement on the Retired List, but if finds insufficient evidence to support this claim.

2.  By law, members are retired in the grade they hold on the date of their REFRAD, and in order to be advanced on the Retired List it must be determined that a member satisfactorily served on active duty in a higher grade.  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. 

3.  The evidence of record confirms that the applicant was in a non-promotable status based on his approved retirement, and that he signed a promotion declination statement in order to avoid completing a service obligation.  As a result, he was properly placed on the Retired List in the pay grade E-8.  Thus, lacking independent evidence to the contrary, the Board finds insufficient evidence to show that he satisfactorily served on active duty as a SGM/E-9, and did not did not satisfy the provisions of the advancement law.  Therefore, the Board finds no error or injustice related to the applicant’s retired rank, and it is compelled to deny the requested relief.  

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

__AAO__  ___JPI___  __RKS __  DENY APPLICATION

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

INDEX

CASE ID	AR2002080436	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/14	
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.	129.04	
2.		
3.		
4.		
5.		
6.