MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001057694

         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman, 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)

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APPLICANT REQUESTS: In effect, that he be advanced to the highest rank he held and in which he served satisfactorily while on active duty in accordance with Title 10 of the United States Code, section 3964 (10 USC 3964).

APPLICANT STATES: In effect, that he thinks his retired rank is unjust because he held the rank and pay grade of master sergeant/E-8 (MSG/E-8) in military occupational specialty (MOS) 19Z50. In support of his application, he provided copies of promotion orders that indicate he was promoted to MSG/E-8 on
1 February 1981 and sergeant first class/E-7 (SFC/E-7) on 1 March 1975. He also provided copies of Good Conduct Medal (GCM) orders that show he had earned the 6^th award of the GCM as a MSG/E-8 and the 2^nd and 3^rd awards as a staff sergeant/E-6 (SSG/E-6). In addition, he enclosed a copy of an honorable discharge certificate he received as a SSG/E-6 and a leave and earnings statement (LES) that shows he was paid as an SFC/E-7 for the month of March 1979.

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

On 30 September 1983, he was released from active duty (REFRAD), under the provisions of chapter 12, Army Regulation 635-200 by reason of length of service retirement. At the time of his separation, he had completed a total of 21 years,
4 months, and 27 days of active military service and held the rank and pay grade of sergeant/E-5 (SGT/E-5). On the following day, 1 October 1983, he was placed on the Retired List in that rank and pay grade.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 21 February 1975, which is the highest rank he held while on active duty. The record also confirms that the applicant was selected for promotion to MSG/E-8 by a Department of the Army (DA) promotion selection board that adjourned on 15 November 1979.

On 8 February 1980, he was found guilty by a special court-martial of feigning a severe hearing loss to avoid duty; altering his medical records; and making two false statements. His sentence included a reduction to the rank and pay grade of SSG/E-6.

Orders Number 2-1, dated 2 January 1981, published by the Military Personnel Center (MILPERCEN), authorized the applicant’s promotion to MSG/E-8, effective 1 February 1981. On 17 February 1981, this promotion order was revoked by MILPERCEN in Orders Number 25-2. The revocation was based on his 8 February 1980 court-martial conviction that resulted in his being reduced to SSG/E-6, which made him ineligible for promotion to MSG/E-8, and should have resulted in his name being removed from the DA promotion standing list.

On 23 June 1983, the applicant was convicted by a general court-martial of impersonating a MSG/E-8, larceny, and bigamy, which ultimately resulted in his reduction to SGT/E-5 on 2 September 1983.

On 8 September 1983, the applicant submitted an application for voluntary retirement (DA Form 2339) that shows he requested to be retired on 1 October 1983, and that he held the rank of SGT/E-5 on the date he submitted this application. A Data for Retired Pay (DA Form 3713), dated 14 September 1983, confirms that he held the rank and pay grade of SGT/E-5 and that this would also be his retired grade. It also confirms that the highest rank he attained while serving on active duty was SFC/E-7.

The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty), which was signed by the applicant on the date of his retirement. This document shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement. In addition, it confirms that on the date of his separation he held the rank and pay grade of SGT/E-5 and that on the following day he was placed on the Retired List in that rank and pay grade.

In a Memorandum of Consideration, dated 16 January 1985, Docket Number: AC85-00530, this Board denied the applicant’s request that he be retired in the rank and pay grade of MSG/E-8. The Board found the applicant was properly retired in the rank and pay grade of SGT/E-5 and that his records would be reviewed for advancement on the Retired List by the proper authorities when his active duty service and time on the Retired List equaled 30 years.

On 24 August 2001, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request to be advanced to the rank and pay grade of MSG/E-8 on the Retired List. This was based on a determination that he had never been promoted to that rank and that the orders promoting him to that grade had been properly revoked. The AGDRB further found his service as both a SFC/E-7 and a SSG/E-6 was not satisfactory based on the court-martial convictions that resulted in his being reduced from both those ranks for cause as a result of misconduct.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the grade a soldier holds on the date of retirement as directed in 10 USC 3961.

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Paragraph 12-6 (Advancement on the Retired List) contains the regulatory guidance on the advancement of soldiers on the Retired List. It 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 as provided for in 10 USC 3964.

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 to the highest rank and pay grade he held and in which he satisfactorily served on active duty but finds an insufficient basis for granting relief.

2. The applicant’s records were appropriately reviewed for advancement on the Retired List by the proper authorities, the AGDRB. The AGDRB denied his request for advancement on the Retired List because he never served on active duty as a MSG/E-8 and his active duty service as an SFC/E-7 and SSG/E-6 was not satisfactory.

3. The evidence of record confirms that the applicant was never promoted to or held the rank and pay grade of MSG/E-8 while serving on active duty and that his promotion order to this rank was properly revoked based on his being ineligible for the promotion. It is also clear that he was reduced from SFC/E-7 and
SSG/E-6 for cause as a result of misconduct. Therefore, the Board finds his active duty service in those grades does not satisfy the satisfactory service provisions of the law and thus, it concludes his advancement on the Retired List above his current retired grade is not warranted.

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

___CLA__ __CLG__ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057694
SUFFIX
RECON
DATE BOARDED	2001/09/11
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1983/09/30
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2.
3.
4.
5.
6.