MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002082908

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr..		Chairperson
Mr. Stanley Kelley .		Member
Ms. Gail J. Wire		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)

---

APPLICANT REQUESTS: In effect, that his retired rank and pay grade be changed to sergeant first class/E-7 (SFC/E-7), the highest rank and pay grade he held.

APPLICANT STATES: In effect, that he served on active duty and in an active status with the Army National Guard (ARNG). He claims that he was promoted to the rank and pay grade of SFC/E-7 while serving in the ARNG. He also states that he voluntarily accepted an administrative reduction to the rank and pay grade of sergeant/E-5 (SGT/E-5) in August 1990, in order to accept an active duty position in an Active Guard/Reserve (AGR) status.

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

On 29 February 1996, while serving on active duty in an AGR status, he was honorably released from active duty (REFRAD). At the time of his REFRAD, he had completed a total of 18 years, 3 months, and 5 days of active military service. The DD Form 214 issued to him upon his separation confirms that he was separated by reason of voluntary early retirement, under the provisions of chapter 12, Army Regulation 635-200, and that he held the rank and pay grade of SGT/E-5 on that date.

The applicant’s Official Military Personnel File (OMPF) confirms that he was promoted to the rank and pay grade of SFC/E-7 on 25 February 1986. Orders Number 187-8, dated 28 September 1990, issued by the State of New Mexico, Department of Military Affairs, Military Division, Sante Fe, New Mexico, authorized the applicant’s voluntary administrative reduction from SFC/E-7 to SGT/E-5, in order to allow him to accept an active duty AGR position.

The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement on the Retired list to the pay grade of E-7. The AGRDB determined that the applicant serve satisfactorily at the pay grade of E-7, and approved his request for advancement on the Retired List effective on the date his active duty service and time on the Retired List equals 30 years as determined by Army Reserve Personnel Command (ARPERSCOM) officials.

An ARPERSCOM letter, dated 4 November 2002, following up on the AGDRB decision, informed the applicant that to be eligible for advancement on the Retired List, the law requires a member’s active service plus his service on the Retired List to total 30 years. It further stated that since he had completed only 18 years, 3 months, and 5 days of active military service as of the date of his retirement, 1 March 1996, he was not yet eligible for advancement on the Retired List. He was finally informed that it had been determined that his active duty service plus his time on the Retired List would equal 30 years on 11 November 2007, and he would be eligible for advancement to SFC/E-7 on the Retired List on that date.

---

The ARPERSCOM letter also instructed the applicant that he should submit a claim for advancement 6 months prior to reaching his eligibility date of
11 November 2007, and at that time the Director, Retired Pay, Defense Finance Accounting Service (DFAS), Cleveland Center, Cleveland Ohio, would be notified to make the adjustment to his retired pay.

National Guard Regulation (NGR) 600-200, establishes the standards, policies and procedures for the management of ARNG enlisted soldiers and specifically the policy for enlisted promotion, appointment, and reduction. Paragraph
6-35(d), in effect, at the time provides that a soldier may volunteer for reduction to any lower rank in order to obtain a benefit or for personal preference.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement because of length of service. Paragraph 21-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List. It states, in pertinent, 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 satisfactorily served in while on active duty.

Title 10 of the United States Code, section 3963, enacted on 30 September 1996, provides the legal authority for the retirement of Reserve enlisted members, who were reduced in grade not as a result of the member’s own misconduct, in the highest grade held satisfactorily. This law authorizes Reserve enlisted members of the Army to be placed on the Retired List in the highest enlisted grade in which they served on active duty satisfactorily. This law contained no grandfather provisions and did not provide legal authority to implement its provisions retroactively.

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 placed on the Retired List in the highest grade in which he satisfactorily served on active duty, SFC/E-7, effective 1 March 1996, the date he was placed on the Retired List, but it finds this claim lacks merit.

2. The evidence of record confirms the applicant was promoted to SFC/E-7 and satisfactorily served on active duty in that grade prior to being administratively reduced to SGT/E-5. The record also verifies that the applicant’s reduction to SGT/E-5 was a voluntary administrative action and was not the result of any misconduct on his part.

---

3. A review of the applicant’s official military personnel records revealed that he was placed on the Retired List in the rank and pay grade of SGT/E-5 on 1 March 1996. The laws and regulations in effect at that time provided for his placement on the Retired List in the rank and pay grade he held on the date of his REFRAD, and for his advancement to the highest grade he satisfactorily held after his active duty service and time on the Retired List equaled 30 years. The law in effect at the time did not provide for placement on the Retired List in the highest grade satisfactorily held.

4. The law change authorizing placement on the Retired List in the highest grade satisfactorily held was enacted on 30 September 1996, and did not contain grandfather provisions that provided legal authority to implement its provisions retroactively. Thus, the Board concludes it would not be appropriate to grant the requested relief. This action is taken in the interest of equity to all those enlisted Reserve soldiers who retired prior to 30 September 1996, and who faced similar circumstances.

5. As the applicant is aware, his advancement on the Retired List to SFC/E-7 has been approved by the AGDRB. Thus, he is advised to follow the instructions provided by ARPERSCOM officials by submitted a claim for advancement
6 months prior to 11 November 2007, the date his active duty service and time on the Retired List equals 30 years.

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

GW___ __SK___ __RO __    DENY APPLICATION

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

---

INDEX

CASE ID	AR2002082905
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2.
3.
4.
5.
6.