MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002077484

         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. JoAnn H. Langston		Chairperson
Mr. Raymond V. O’Connor, Jr.		Member
Ms. Barbara J. Lutz		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 highest grade he held on the Retired List and that he be provided any back pay and allowances due as a result.

APPLICANT STATES: In effect, that he would like to be advanced to the rank and pay grade of captain/0-3 (CPT/0-3), which is the highest permanent grade he held. He claims that he was promoted to CPT/0-3 in the United States Army Reserve (USAR), but his separation document (DD Form 214), dated 31 October 1958, indicates that the highest grade he held was first lieutenant/0-2 (1LT/0-2).

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

On 31 October 1958, the applicant was released from active duty (REFRAD), and transferred to the USAR, in the rank and pay grade of 1LT/0-2. At the time, the applicant had completed a total of 14 years, 3 months, and 15 days of active military service. Of that total period of active duty service, 9 years, 8 months, and 17 days were served in a commissioned officer status.

The remarks section of the separation document (DD Form 214) issued to him on 31 October 1958 contains an entry that indicates that the applicant was temporarily appointed a 1LT/02 in the AUS on 22 August 1951, and that he was permanently appointed a CPT/0-3 in the USAR on 13 October 1957.

The promotion letter, dated 13 September 1957, published by the Office of The Adjutant General, Washington D.C, which authorized his promotion to CPT/0-3 stipulated that if he were on active duty in a lower commissioned officer grade, he was deemed to have accepted a temporary appointment in the lower grade in which serving and, if he did not have an uncompleted period of required active duty under law or regulation, he could elect to be relieved from active duty and receive his promotion to CPT/0-3 in the USAR. However, it is clear that this promotion was not valid while he was still serving on active duty, and that he never actually held and served on active duty in this rank and pay grade.

On 27 January 1959, the applicant enlisted in the Regular Army (RA) in an enlisted status, and reentered active duty as a sergeant /E-5 (SGT/E-5). He continuously served on active duty in an enlisted status until being REFRAD for the purpose of retirement on 30 June 1965. At that time, he had completed a total of 20 years, 11 months, and 14 days of active military service, and he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6).

The Data for Retired Pay (AGPZ Form 977), dated 17 May 1965, prepared on the applicant during his retirement processing confirms that his active duty grade and retired pay grade would be SSG/E-6. Item 6 (Highest Grade Attained) confirmed that the highest rank and pay grade he held and in which he satisfactorily served while on active duty was 1LT/0-2.
Department of the Army (DA) Special Orders Number 131, dated 17 May 1965, directed the applicant’s release from active duty on 30 June 1965, and his placement on the Retired List, in the rank and pay grade of SSG/E-6, on 1 July 1965. It also authorized his transfer to the USAR Retired Reserve in the rank and pay grade of CPT/0-3.

The separation document (DD Form 214) issued to the applicant on the date of REFRAD, 30 June 1965, shows that he was separated under the provisions of Title 10 of the Untied States Code, section 3914, by reason of length of service retirement, after completing a total of 20 years, 11 months, and 14 days of active military service.

The applicant’s record clearly shows that the highest rank and pay grade he held and in which he satisfactorily served on active duty was 1LT/0-2. It also confirms that he never served on active duty in the rank and pay grade of CPT/0-3. On
13 August 1974, Letter Orders Number 94-784, published by the Office of the Adjutant General, United States Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, directed the applicant’s advancement to the rank and pay grade of 1LT/02 on the Retired List, effective 13 October 1974, based on his satisfactory active duty service in that grade.

On 23 July 2002, the Army Grade Determination Review Board staff concluded that the applicant’s request for advancement to the rank and pay grade of
CPT/0-3 on the Retired List did not fall within its jurisdiction because proper advancement action under the provisions of Title 10 of the United States Code, section 3964 had already been taken. The AGDRB referred the case to this Board for consideration and review.

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 RA 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).

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.

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Paragraph 12-6 (Advancement on the Retired List) of Army Regulation 635-200, contains regulatory 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 of an RA enlisted member, who while serving on active duty in an enlisted status, also served in a dual status as a USAR commissioned officer.

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 request that his retired grade be changed to CPT/0-3 and that he receive all back pay and allowances due as a result, but it finds insufficient evidence to support this claim.

2. The evidence of record confirms that the applicant was REFRAD and placed on the Retired List in the rank and pay grade of SSG/E-6 under the provisions of law pertaining to RA enlisted members who have completed the necessary active duty service to qualify for retirement.

3. By law, 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 rank and pay grade. The evidence of record also confirms that the highest rank and pay grade in which he satisfactorily served while on active duty was 1LT/0-2, and that he was appropriately advanced to that pay grade on the Retired List.

4. It is clear the applicant was promoted to and held the permanent rank and pay grade of CPT/0-3 in the USAR. However, it also evident that he never served in that rank and pay grade on active duty. His USAR inactive service as a CPT/0-3 does not fulfill the satisfactory active duty service provisions of the advancement law. Thus, there is an insufficient evidentiary basis to support the requested relief.

5. 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.

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

__JHL __ __ RVO _ __BJL __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077484
SUFFIX
RECON
DATE BOARDED	2002/08/20
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1965/06/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 319	131.0900
3.
4.
5.
6.