MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 January 2002
         DOCKET NUMBER: AR2001060098

         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. Jennifer L. Prater		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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 retroactively promoted to the pay grade E-8 and be advanced to that pay grade on the Retired List.

APPLICANT STATES: In effect, that he recently retired from the Active Guard/Reserve (AGR) program with over 21 years of active military service. He claims that he was on the command waiver program serving as a first sergeant/E-8 (1SG/E-8) for a total of 6 years. He indicates that his record shows that he only served in that rank and pay grade of 4 years because the waivers are only good for 2 years and the record does not account for the year it took to get each waiver approved. He also claims that he did the job, but, could not get promoted because the rules of the AGR program did not allow for a Readiness Noncommissioned Officer (NCO) to be promoted to 1SG/E-8. He further states that he had hoped to be promoted prior to retirement, however, because of the AGR program restrictions and the military occupational specialty (MOS) he held that did not happen.

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

On 31 May 2001, he was released from active duty (REFRAD) under the provisions of Title 10 of the United States Code, section 3941 (10 USC 3914) by reason of voluntary retirement for length of service.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in block 18 (appointments and reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 8 April 1983 and that this was the highest rank to which he was actually promoted, held, and satisfactorily served in during his tenure on active duty. Item 35 (current and previous assignments) shows that while in an AGR status, he served in a 1SG position from 15 September 1985 to 9 June 1986 and again from 1 August 1989 to 13 August 1991. However, there is no indication that he was ever promoted to this rank and pay grade while serving on active duty.

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of Orders Number 037-052, dated 6 February 2001, published by the Office of the Adjutant General (OTAG), State of New York, which authorized the applicant’s REFRAD 31 May 2001 and his placement on the Retired List on 1 June 2001 under the provisions of 10 USC 3914. It also confirms that the applicant held the rank of SFC/E-7 on the date of his REFRAD and that this was also his authorized retired grade. In addition, the order verifies that he had completed 21 years,
6 months, and 10 days of military service for the purpose of retired pay computation under 10 USC 1405 and a total of 30 years, 8 months, and 26 days of service for basic pay purposes.

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The Director, Military Personnel, New York Army National Guard, provided a letter supporting the applicant’s request, dated 27 November 2001. It indicates that under the rules in effect at the time, AGR Readiness NCOs could serve in a 1SG position with a command waiver. However, they were not allowed to be promoted because the 1SG position was not an authorized full time AGR documented position. In addition, it indicates that it was common practice at the time to select the full time Readiness NCO to fill the 1SG position because it was believed a fulltime 1SG would enhance the overall operation of the unit. The Director, Military Personnel, also comments that this was an unfair practice and that he supported the applicant’s request for promotion to 1SG based on his performing in a 1SG position for over 2 years.

10 USC 3914 provides the legal authority for the voluntary retirement of enlisted members because of length of service who have completed at least 20, but less than 30 years of service. 10 USC 3961 mandates that members retiring under 10 USC 3914 will retire in the Regular or Reserve grade held on the date of retirement.

10 USC 3964 provides the legal authority for advancement on the Retired List. It states, in pertinent part, that retired soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty, as determined by the Secretary of the Army, when their active service plus service on the retired list totals 30 years.

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 promoted to 1SG/E-8 based on his satisfactory performance in a 1SG position. However, it finds insufficient evidence to support the requested relief.

2. By law and regulation, retirement will be in the Regular or Reserve grade the soldier holds on the date of retirement and advancement on the Retired List is only authorized when a member has actually been promoted to, held, and satisfactorily served on active duty in a higher grade. Simply performing duty in a position authorized a higher pay grade does not satisfy the satisfactory service provision of the law.

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3. The evidence of record confirms that the highest rank the applicant was promoted to and held while serving on active duty was SFC/E-7. Further, it is clear that, although he served in a position calling for a higher grade, he was never actually selected for or promoted to 1SG/E-8 by the proper authority during his active duty tenure. Therefore, the Board concludes he was properly assigned the retired grade SFC/E-7 and that he does not meet the criteria for advancement on the Retired List.

4. Notwithstanding the applicant’s satisfactory performance in a 1SG position and the support for his promotion request from the Director, Military Personnel, New York Army National Guard, in the opinion of the Board, the policy and procedure regarding serving in a 1SG position while on active duty in the AGR, in an authorized Readiness NCO position, was clearly defined, understood, and equally applied to all soldiers in that category at the time.

5. In view of the foregoing, the Board concludes that the applicant should have had no expectation that his service in a 1SG position would result in his promotion to that rank and pay grade 1SG/E-8 solely on that basis. It further finds no error or injustice related to the applicant not being promoted prior to his retirement or that would support promoting him at this time.

6. 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.

7. 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

__JLP __ _ _CJP __ __KWL DENY APPLICATION

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

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INDEX

CASE ID	AR2001060098
SUFFIX
RECON
DATE BOARDED	2002/01/17
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/05/31
DISCHARGE AUTHORITY	10 USC 3914
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 319	131.0900
3.
4.
5.
6.