MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001065020

         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. Thomas b. Redfern, III		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, reconsideration of his request that he be advanced to the rank and pay grade of first lieutenant/0-2 (1LT/0-2) on the Retired List.

APPLICANT STATES: In effect, that the information provided in the advisory opinion provided to the Board during its original consideration of his case, from an official of the Army Reserve Personnel Command (ARPERSCOM), that indicated that his commission was vacated upon his release from active duty (REFRAD) on 11 December 1953 was wrong. He indicates that he served in
the United States Army Reserve (USAR) and attended drills as a 1LT/0-2 subsequent to his separation from active duty and he did not resign his commission until the day prior to his reentering active duty as a master sergeant/E-7 (MSG/E-7) on 8 March 1954. He indicates that he was promoted
to 1LT/0-2 on 20 August 1953, and that he attained six months in grade on
20 February 1954, prior to reentering active duty as a MSG/E-7 on 8 March 1954. He indicates that the Army made a mistake in its original decision not to advance him to 1LT/0-2 on the Retired List because his commission was not vacated and he served as a 1LT/0-2 from 20 August 1953 through 7 March 1954, more than the six months required.

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

On 29 October 1951, the applicant was appointed a second lieutenant/0-1 in the USAR and he entered active duty as a commissioned officer in the Army of the United States (AUS) on 20 February 1952.

The applicant’s Officer Qualification Record (WD AGO Form 66) documenting his active duty commissioned officer service from 20 February 1952 through
11 December 1953, confirms in item 18 (Grade Status) that he was promoted to 1LT/0-2, effective 1 October 1953 with a date of rank of 20 August 1953.

On 11 December 1953, the applicant was honorably REFRAD after completing
1 year, 3 months, and 22 days of active duty service as a commissioned officer and 3 months and 22 days of active duty service as a 1LT/0-2.

On 8 March 1954, the applicant reentered active duty in an enlisted status as a MSG/E-7. On 17 November 1967, he submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be retired on 30 April 1968, in the rank and pay grade of MSG/E-7. This document confirms, in Item 17 (Chronological Dates of Military Service), that he served as a 1LT/0-2 in the USAR from 12 December 1953 through 7 March 1954, and was credited with
2 months and 26 days of inactive service for this period. However, this document and the rest of his record documents no other period of active duty service he performed in a commissioned officer status subsequent to his REFRAD on
11 December 1953.

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A Data for Retired Pay (AGPZ Form 977), dated 17 June 1968, prepared on the applicant during his retirement processing contains the entry MSG/E-7 in Item
2 (Retired Grade) and Item 18 (Retired Pay Grade). Item 7 (Highest Grade Attained) contains the entry 1LT/0-2 and item 17 (Date Placed on Retired List) verifies that he was to be placed on the Retired List, effective 1 November 1968.

The separation document issued to the applicant on the date of his separation for the purpose of retirement, 31 October 1968, which he authenticated with his signature, confirms that he held the rank and pay grade of MSG/E-7 on the date of REFRAD and had completed a total of 20 years and 2 days of active military service.

On 29 October 1978, when his active duty service and time on the Retired List equaled 30 years, the applicant was advanced on the Retired List to the rank and pay grade of 2LT/0-1, the highest grade he satisfactorily held while serving on active duty.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and it states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.

Title 10 of the United States Code, section 3964, provides the legal authority for advancement on the Retired List and 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 in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.

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 have been advanced to the rank and pay grade of 1LT/0-2 on the Retired List because he served in that grade for more than the 6 months required. However, it finds insufficient evidence to support this claim.

2. By law and regulation, an enlisted member is entitled to be advanced on the Retired List to the highest rank and pay grade in which he or she satisfactorily served on active duty as determined by the Secretary of the Army. A satisfactory service determination under this provision of the law requires that a member serve on active duty in the commissioned officer rank and pay grade of
1LT/0-2 for 6 months.
3. The evidence of record confirms that the applicant served on active duty in a commissioned officer status for 1 year, 9 months, and 22 days. However, it is also clear that only 3 months and 22 days of this active duty commissioned officer service was performed while he held the rank and pay grade of 1LT/0-2.

4. The Board notes the applicant’s claim that he continued to serve as a 1LT/0-2 in the USAR and that his total service in this rank and pay grade exceeded the
6 month requirement. However, while the Board does not contest this point, this USAR service is credited as inactive service and does not qualify as satisfactory active duty service under advancement provisions of the law. In order to be advanced on the Retired List to the rank and pay grade of 1LT/0-2, he would have had to complete 6 months of service in this rank and pay grade while on active duty, Reserve service does not qualify.

5. In view of the facts of this case, the Board finds no evidentiary basis to support the applicant’s request for advancement to the rank and pay grade 1LT/0-2 on the Retired List, and it concludes that the original decision to advance him on the Retired List to the rank and pay grade of 2LT/0-2 was proper and equitable and no further advancement is warranted.

6. 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__ _ _TBR__ __DPH DENY APPLICATION

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

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INDEX

CASE ID	AR2001065020
SUFFIX
RECON	1996/09/04
DATE BOARDED	2002/03/05
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1968/10/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2.
3.
4.
5.
6.