MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 July 2001
         DOCKET NUMBER: AR2001055298

         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. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. John T. Meixell		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 the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES: In effect, that he was promoted prior to his retirement but was never told or found out until the day he retired.

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

On 31 August 1973, he was released from active duty (REFRAD) for the purpose of retirement. On that date he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6) and had completed a total of 20 years, 10 months, and 9 days of active military service.

A Data for Retired Pay (DA Form 3713), dated 12 April 1973, that was prepared on the applicant during his retirement processing, verified that his active duty grade and the highest grade he attained while on active duty was SSG/E-6. It also confirmed that he would be placed on the Retired List , effective
1 September 1973, and that his retired pay grade would also be SSG/E-6.

On 13 April 1973, Special Orders Number 103, published by the 199^th Personnel Services Company, APO San Francisco 96301, directed the applicant’s REFRAD on 31 August 1973, and his placement on the Retired List the following day in the rank and pay grade of SSG/E-6.

On 2 July 1973, Special Orders Number 127, was issued by Headquarters, Department of the Army, which provided the authority for the applicant’s promotion to SFC/E-7. The special instructions of this order indicated that promoted individuals automatically incurred a service obligation, prior to
non-disability retirement, computed in accordance with paragraph 7-52, Army Regulation 600-200. The copy of this order on file confirms that the applicant’s unit locally reproduced the order for distribution on 30 August 1973.

The applicant’s promotion to SFC/E-7 was never entered in block
33 (appointments and reductions) of his Enlisted Qualification Record
(DA Form 20), which would indicate he was never formally and officially promoted to that rank and pay grade. The last promotion recorded in his record is SSG/E-6, with a date of rank of 16 January 1967.

In addition, the applicant’s Military Personnel Records Jacket (MPRJ) contains no documentation to show that he ever attempted to request that his retirement application be withdrawn in order for him to accept a promotion to SFC/E-7 and complete the 2 year service obligation that promotion required.

---

On 31 August 1973, the applicant was REFRAD under the provisions of Title 10, United States Code, section 3914, for the purpose of voluntary retirement. The separation document (DD Form 214) issued to the applicant on the date of his separation from active duty, which he authenticated with his signature, confirms that he held the rank and pay grade of SSG/E-6 on the date of his REFRAD and that he was placed on the Retired List the following day in that rank and pay grade.

Army Regulation 600-200, in effect at the time, prescribed policies, responsibilities, and procedures for the career management of Army enlisted personnel. Chapter 7 contained the Army’s enlisted promotion policy and paragraph 7-52 contains guidance on the 2 year service obligation incurred by individuals who were promoted to pay grades E-7, E-8, or E-9, which they were required to serve prior to non-disability retirement.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 12 contained the policy, procedure pertaining to voluntary retirement and paragraph 12-8 outlined specific eligibility requirements. Sub-paragraph (g) stated, in pertinent part, that individuals who were promoted to pay grade E-7, E-8, or E-9 incurred a two year service obligation, which was required to be completed prior to non-disability retirement. It further stated that any member promoted to such a grade after submitting an application for retirement would be required to submit a written request to withdraw the retirement or to decline the promotion within 15 days after the effective date of the promotion.

Title 10 of the United States Code, section 3961, provides the legal authority for retirement grades. It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement. Section 3964 provides the authority for advancement on the Retired List and states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and satisfactorily served in 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 his rank should be corrected to show SFC/E-7 because he was promoted to that rank and pay grade but not informed until the day of his retirement. Although his claim of late notification appears to be valid, the Board finds this factor alone is not sufficiently mitigating to warrant relief.

2. By regulation, the applicant was required to complete a two year service obligation prior to retirement based on his promotion to SFC/E-7. Given his approved retirement, the regulation mandated that he submit a request to withdraw it in order to remain eligible for promotion. There is no evidence that suggests he ever attempted to withdraw his retirement in order to accept the promotion and remain on active duty for the 2 year service obligation it required.

3. The passage of time, almost 30 years, since the applicant’s retirement makes it extremely difficult for the Board to determine the specific facts and circumstances surrounding the events that took place in regard to his promotion.

4. However, given the applicant’s admission that he was informed of his promotion on the day of his retirement, the Board finds it reasonable to conclude that although late, this notification took place in order to provide him the opportunity to withdraw his retirement.

5. Therefore, it appears to the Board that the applicant elected to decline the promotion to SFC/E-7 so that he could proceed with his retirement as scheduled and not incur the 2 year service obligation. Lacking evidence to the contrary, the Board presumes government regularity in the applicant’s promotion and retirement processing.

6. In addition, although he did not specifically request advancement on the Retired List, the Board determined that since he is currently on the Retired List and requested to be promoted, this carried with it an implied request for advancement, which necessitated consideration by the Board.

7. By law, retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and satisfactorily served in while on active duty.

8. In order to satisfy this satisfactory service provision of the advancement law, a member must have been promoted to, paid in, satisfactorily held, and served in the higher pay grade while on active duty. Being selection for promotion alone does not satisfy this requirement and is not a basis for advancement. Thus, the Board concludes that the applicant’s advancement on the Retired List would also not be appropriate.

9. 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

__WTM _ __AAO __ __JTM__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001055298
SUFFIX
RECON
DATE BOARDED	2001/07/31
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1973/08/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 319	131.0900
3.
4.
5.
6.