MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        
         BOARD DATE: 16 October 2001
         DOCKET NUMBER: AR2001059179


         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. Raymond V. O’Connor, Jr.		Chairperson
Ms. Regan K. Smith		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 rank and pay grade of major/0-4 (MAJ/0-4) on the Retired List.

APPLICANT STATES: In effect, he is applying for advancement on the Retired List to the highest grade he held after 30 years of service in accordance with Army regulations. In support of his application, he provides copies of his separation documents (DD Forms 214) and a Federal Recognition order.

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

He served on active duty in an enlisted status in the Regular Army for 3 years,
8 months, and 8 days until being honorably separated on 7 June 1965, in order to accept a commission as an officer. On 8 June 1965, he immediately entered active duty as a commissioned officer and continuously served in that status for
8 years, 2 months, and 24 days.

On 1 September 1973, he was released from active duty (REFRAD) as a commissioned officer by reason of reduction in force (RIF) and transferred to the USAR Standby Reserve, St Louis, Missouri, in the rank and pay grade of captain/0-3 (CPT/0-3).

From 7 December 1973 through 5 May 1984, the applicant served in the ARNG but not on active duty and during this period on 14 November 1977, he was promoted to MAJ/0-4. On 7 May 1984, he entered active duty in the Active Guard/Reserve (AGR) program as an enlisted member of the ARNG. He continuously served on active duty in that status until being REFRAD on
31 July 1995.

The Certificate of Release or Discharge from Active Duty (DD Form 214) issued to the applicant on the date of REFRAD, 31 July 1995, shows that he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement. It also confirms that on the date of his separation, he had completed a total of 24 years and 7 days of active military service, held the rank and pay grade of sergeant first class/E-7 (SFC/E-7), and was placed on the Retired List in that rank and pay grade.

On 12 October 2001, the Army Grade Determination Review Board (AGDRB) considered the applicant’s case and determined the highest grade in which he satisfactorily served on active duty for purpose of advancement on the Retired List was CPT/0-3 and it approved his advancement to this rank and pay grade.

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In connection with the processing of this case, an advisory opinion was requested of and received from the Army Reserve Personnel Command (ARPERSCOM), dated 26 July 2001. It indicated that the applicant’s record revealed that he was placed on the Retired List on 1 August 1995, in the grade of SFC/E-7, and that he had held the rank of CPT/0-3 on active duty from
1 November 1967 through 1 September 1973. It also revealed that he was promoted to MAJ/0-4 while serving in the ARNG on 14 November 1977 but that he never served on active duty in that commissioned officer rank and pay grade.

On 6 August 2001, the applicant was provided a copy of this opinion in order to be provided an opportunity to respond. To date, he has failed to reply.

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.

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 regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).

Paragraph 12-6 contains guidance on the advancement of enlisted soldiers on the Retired List. It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty. There are no provisions of law or regulation that provide for the advancement on the Retired List of an enlisted member who served in a commissioned officer grade in the ARNG not 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, and advisory opinion(s), it is concluded:

1. The Board notes the applicant’s contention that he should be advanced to the rank and pay grade of MAJ/0-4 on the Retired List but finds insufficient evidence to support this claim. The evidence of record confirms that he was REFRAD and placed on the Retired List under the provisions of law pertaining to enlisted members who have completed the necessary active duty service to qualify for retirement.

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2. By law and regulation, advancement on the Retired List is limited to enlisted and warrant officer members of the Army and is only authorized when the member has satisfactorily served on active duty in a higher pay grade. The record confirms that the AGDRB determined that the applicant should be advanced to CPT/0-3 on the Retired List based on this being the highest grade he satisfactorily served in on active duty under the advancement provisions of the law.

3. The record clearly establishes that the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT/0-3 and that he was appropriately advanced to that pay grade on the Retired List by the AGDRB. His service in the ARNG as a MAJ/0-4 was not performed on active duty and does not fulfill the satisfactory active duty service provisions of the law. Thus, the Board concludes the applicant is not eligible to be advanced to that rank and pay grade on the Retired List.

4. It appears to the Board that the applicant may be confusing the retired grade provisions of the law pertaining to active duty members, which apply in his case, to those that apply to Reserve Component members who become eligible for retired pay at age 60 under non-regular service retirement rules. These
non-regular provisions of the law do not apply to members who are placed on the Retired List after completing 20 or more years of active military service and therefore do not apply in his 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

__RVO__ ___RKS__ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059179
SUFFIX
RECON
DATE BOARDED	2001/10/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1995/07/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2.
3.
4.
5.
6.