MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 November 2002
	DOCKET NUMBER:   AR2002080499

	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 advanced on the Retired List to the rank and pay grade of platoon sergeant/E-7 (PSG/E-7).

APPLICANT STATES:  In effect, that he should be advanced to the pay grade of E-7 on the Retired List in accordance with Title 10, United States Code, section 3694.  He states that he twice served in authorized E-7 positions.  He claims to have been assigned duties operating the post stockade at Fort Bragg, North Carolina while assigned to the 58th Military Police company; and in the position of guard commander and PSG while assigned to the 18th Airborne Corps between June 1972 and October 1974.  In support of his application, he submits copies of the following documents:  separation document (DD Form 214); Voucher or Claim for Dependent Travel and Dislocation or Trailer Allowance 
(DD Form 1351-4); Travel Voucher or Subvoucher (DD Form 1351-2); Individual Jump Record (DA Form 1307); Certificate of Appreciation; Certificate of Training; Letter of Appreciation; and retirement order. 

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

On 31 October 1974, the applicant was honorably released from active duty (REFRAD), for the purpose of retirement after completing 20 years and 2 days of active military service. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in Item 18 (Appointments and Reductions) that he was promoted to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on 9 September 1969, and that this is the highest rank and pay grade he attained while serving on active duty.  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 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 Grade), which verifies 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 SSG/E-6 on 1 November 1974. 

The separation document (DD Form 214) issued to and signed by the applicant on the date of his separation confirms that he held the rank and pay grade of SSG/E-6 on the date of his separation, and that he was serving in military occupational specialty (MOS) 95B (Military Policeman).

The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement on the Retired List to the pay grade of E-7.  However, on 17 October 2002, the AGRDB determined that the applicant was not eligible for advancement, under the provisions of Title 10, United States Code, Section 3964, because he was never promoted to, paid as, or served in a rank and pay grade above SSG/E-6 while on active duty and it denied his request.

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.  The term “highest grade in which he served on active duty satisfactorily” does not apply to a member who simply served in a position calling for a higher rank and pay grade.  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 applicant’s contention that he should be advanced on the Retired List to the pay grade of PSG/E-7 because he served in a position which authorized that rank and pay grade.  However, the Board finds this factor alone does not provide a sufficient evidentiary basis to warrant the relief requested. 

2.  By law, in order to be advanced on the Retired List a member must have satisfactorily served on active duty in the 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.  Serving in a position authorized the higher grade alone does not satisfy this provision of the law.  

3.  The evidence of record confirms that the applicant was placed on the Retired List in the rank and pay grade of SSG/E-6, and that this 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 that the applicant did not meet the satisfactory service provisions of the advancement law.  Therefore, the Board finds insufficient evidence to grant the requested relief.  

4.  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.
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

__AAO__  ___JPI___  __RKS  __  DENY APPLICATION

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

INDEX

CASE ID	AR2002080499	
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.	129.0400	
2.		
3.		
4.		
5.		
6.