| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Fred N. Eichorn | Chairperson | ||
| Mr. Roger W. Able | Member | ||
| Mr. Harry B. Oberg | Member |
APPLICANT REQUESTS: In effect, that he be advanced on the Retired List to the rank and pay grade of master sergeant/E-8 (MSG/E8).
APPLICANT STATES: In effect, that he was promoted to the rank of MSG and served in that rank for 1 month prior to his retirement. He further states that his time served as a MSG, the highest rank he held on active duty, qualifies him for advancement on the Retired List. In support of his application, he submits the following documents: Leave and Earnings Statement (DA Form 3686), dated September 1982; retirement orders; mobilization orders for active duty from a retired status; and an Enlisted Evaluation Report (DA Form 2166-6).
EVIDENCE OF RECORD: The applicant's military records show:
The applicant retired in the pay grade of E-7 on 31 October 1982. He served in military occupational specialty (MOS) 11B (Infantryman) and he earned the following awards during his active duty tenure: Good Conduct Medal (7th Award); National Defense Service Medal; Combat Infantryman Badge; Bronze Star Medal; Air Medal; Soldier’s Medal; Bronze Star Medal with “V” Device; Army Commendation Medal (4th Award) with “V” Device; Republic of Vietnam Campaign Medal with 60 Device; Republic of Vietnam Cross of Gallantry with Palm Unit Citation; and Vietnam Service Medal with 1 silver service star.
On 16 August 1982, while assigned to Fort Leonard Wood, Missouri, the applicant submitted his application for voluntary retirement. On 17 August 1982, Headquarters, US Army Training Center Engineer and Fort Leonard Wood, Missouri, approved his application for voluntary retirement and issued Orders Number 229-11, which directed the applicant’s retirement, effective 31 October 1982, and his placement on the Retired List, in the rank and pay grade of sergeant first class/E-7 (SFC/E-7), the following day.
The LES provided by the applicant for the pay period 1 through 30 September 1982, contains an entry that indicates he was promoted to MSG/E-8 on
1 September 1982, and paid in that rank and pay grade for that pay period.
The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement to the rank and pay grade of MSG/E-8 on the Retired List. On 2 May 2002, the AGRDB convened to consider the applicant’s request and it determined after a review of his Official Personnel Military File (OMPF) that his promotion to the pay grade E-8 could not be verified. The AGDRB found that even had the promotion taken place, it would have been invalid because the applicant would have been in a non-promotable status based on his approved retirement and therefore, his service in the rank and pay grade of MSG/E-8 could not be considered satisfactory.
Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 12 contained the policy, procedure pertaining to voluntary retirement. It also contained specific eligibility requirements and stated, in pertinent part, that soldiers who have an approved retirement are in a non-promotable status and they will not be promoted unless a request for a withdrawal of their retirement application is approved. Further, individuals who are promoted to pay grade of E-7, E-8, or E-9, incur a two year service obligation and this obligation must be completed prior to voluntary retirement.
Title 10 of the United States Code, section 3961, provides the legal authority for retirement grades. It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement. Section 3964 provides the authority for advancement on the Retired List and 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 be advanced on the Retired List based on being promoted to and paid as a MSG/E-8. However, it finds insufficient evidence to support this claim.
2. The evidence of record confirms that the applicant voluntarily submitted his application for retirement on 16 August 1982, and it was approved in retirement orders issued on 17 August 1982. These orders directed his retirement, effective 31 October 1982, and his placement on the Retired List, in the rank and pay grade of SFC/E-7, on the following day.
3. By regulation, members are automatically placed in a non-promotable status upon approval of their retirement and those on HQDA promotion lists are automatically removed and retired in the grade they currently hold. Further, the law stipulates that members are eligible to be advanced on the Retired List when it is determined that they satisfactorily served in a higher rank and pay grade while on active duty, when their active duty service and time on the Retired List equals 30 years.
4. Based on the applicant’s approved retirement, he was placed in a
non-promotable status on 17 August 1982, the date his retirement was approved. Thus, any subsequent promotion to MSG/E-8 would have been invalid and any active duty service performed in that rank and pay grade could not be considered satisfactory. Therefore, the Board concurs with the determination of the AGDRB that the applicant’s service in the rank and pay grade of MSG/E-8 was not satisfactory, and it concludes that relief is not warranted in this 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
__FNE__ __RWA__ __HBO___ DENY APPLICATION
| CASE ID | AR2002072663 |
| SUFFIX | |
| RECON | 2002/06/11 |
| DATE BOARDED | YYYYMMDD |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 131.0900 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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