MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 January 2002
         DOCKET NUMBER: AR2001062148

         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. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		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)

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APPLICANT REQUESTS: In effect, that he be advanced to the pay grade of E-6 on the Retired List.

APPLICANT STATES: In effect, that he should be advanced on the Retired List to the highest pay grade he held while serving on active duty. In support of his application, he provides a copy of his application for retirement (DA Form 2339) and a letter order authorizing him reenlistment leave, dated 16 November 1950.

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

On 30 November 1962, he was released from active duty (REFRAD) for the purpose of retirement. On that date he held the rank and pay grade of specialist five/E-5 (SP5/E-5) and he had completed a total of 20 years, 10 months, and
8 days of active military service.

The applicant’s Department of the Army (DA) Form 24 (Service Record), that documents his period of service from 11 November 1950 to 30 November 1962, confirms in section 1 (Appointments, Promotions, or Reductions), that he was promoted to the rank and pay grade of SP5/E-5 on 1 June 1958 and that this was the highest pay grade in which he served while on active duty.

The record of promotions contained in the applicant’s service record does confirm that he had been promoted to the rank of sergeant (SGT) on
20 November 1954. However, this rank also carried with it a pay grade of E-5. There is no indication in his record that he ever was promoted to a rank that authorized a pay grade higher than E-5 or more specifically that he was promoted to the rank and pay grade of sergeant first class/E-6 (SFC/E-6).

On 17 September 1962, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting to be retired on 30 November 1962, in the rank and pay grade of SP5/E-5. This form indicates in block 12 (highest grade ever held on active duty) that the applicant had held the rank and pay grade of SFC/E-6 while on active duty. However, this entry is not corroborated by any other entries, documents, or orders in his service record or his Military Personnel Records Jacket (MPRJ).

A Certification of Information for Retirement Pay (DD Form 424) on file that was prepared during the applicant’s retirement processing confirms that the grade in which he was being retired was SP5/E-5 and there is no entry contained in block 11 (grade to which advanced on Retired List and authority). This would indicate that the applicant had not held a pay grade higher than the one in which he was being retired while he was on active duty.

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The record also contains a properly constituted separation document
(DD Form 214), which was authenticated by the applicant with his signature on the date of his REFRAD. This document shows that on 30 November 1962, he was separated under the provisions Title 10 of the United States Code, section 3914 (10 USC 3914), by reason of length of service retirement. It further confirms that he held the rank and pay grade of SP5/E-5 on the date of his separation and that on the following day he was placed on the Retired List in that rank and pay grade.

On 12 June 1976, the applicant submitted a letter inquiry asking when he would be advanced on the Retired List to the pay grade of E-6, the highest grade he held on active duty.

On 29 July 1976, the Department of the Army, Director of Retired Activities, responded to the applicant’s inquiry. In his response, he indicated that the applicant’s records failed to show he was promoted to the rank and pay grade of SFC/E-6 while serving on active duty. He also advised the applicant that if he could provide documents confirming that he had been promoted to the rank and pay grade of SFC/E-6, further consideration would be given to his request.

The applicant also provided a copy of an order authorizing him reenlistment leave, dated 16 November 1950, which he contends confirms he was promoted to and held the pay grade of E-6 while on active duty. However, this order only confirms that the applicant held the rank and pay grade of sergeant/E-5 and does not provide any confirmation that he ever held the pay grade E-6.

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 (Advancement on the Retired List) contains guidance on the advancement of soldiers 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 when their active service plus service on the retired list totals 30 years. The legal authority for this action is provided by Title 10 of the United States Code, section 3964
(10 USC 3964).

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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 pay grade of E-6 on the Retired List, however, it finds insufficient evidence to support this claim.

2. By law and regulation, retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty. Notwithstanding the applicant’s claim and the entry in block
12 (highest grade ever held on active duty) of his retirement application, the evidence of record confirms that the applicant was never actually promoted to, never held or served on active duty in the pay grade of E-6, and he has failed to provide independent evidence to the contrary.

3. In view of the facts of this case, the Board is compelled to conclude that the applicant does not meet the satisfactory service provision of the advancement law and that he is not eligible for advancement to the pay grade of E-6 on the Retired List.

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

__FNE __ _ _TSK __ __JTM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062148
SUFFIX
RECON
DATE BOARDED	2002/01/10
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1962/11/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
2. 319	131.0900
2.
3.
4.
5.
6.