MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2003084181

         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. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones, II		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 promoted to the rank and pay grade of master sergeant/E-8 (MSG/E-8), effective on the date he completed
26 years of service.

APPLICANT STATES: In effect, that he should have been automatically promoted to MSG/E-8 when he attained 26 years of service. He states at the time he retired, he had completed over 27 years of active military service. He claims that he was redlined from the promotion list for three years for no reason. He states that he served in a MSG/E-8 position for three years as a Senior Personnel Sergeant. He also claims that he filled a sergeant major (SGM) position from 1997 to 1998, while he was serving in Saudi Arabia.

The applicant further states that he was in a medical holding company at Fort Benning, Georgia, for stomach surgery in 1979 and for hernia surgery in 1981. He claims that at 3:45PM on 30 November 1981, he was notified by the hospital SGM to clear the hospital and report to the personnel office to sign his retirement or he would be separated by reason of expiration of term of service (ETS). He states that he had 26 years of service in April 1980, and he should have been promoted at that time or upon his retirement. He concludes that given the unforeseen circumstances in his case, he should be retired in the rank and pay grade of MSG/E-8.

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

On 30 November 1981, he was released from active duty (REFRAD) for the purpose of retirement. On that date he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7), and he had completed a total of 26 years, 11 months, and 9 days of active military service.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 3 February 1969, and that this is the highest rank he held while serving on active duty. The applicant’s Military Personnel Records Jacket (MPRJ) contains no documents or orders that indicate that he was ever selected for promotion by a properly constituted
DA Promotion Selection Board, or that he was ever added to a DA promotion standing list.

On 12 November 1981, the applicant’s release from active duty (REFRAD) and placement on the Retired List the following day was directed in Orders Number 316-246, issued by Headquarters, United States Army Infantry Center, Fort Benning, Georgia. These orders also confirm that the effective date of his REFRAD was 30 November 1981, and that his authorized retired grade was SFC/E-7.

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On 30 November 1981, the Chief, Patient Administration Division, Fort Benning Hospital, published a memorandum for record that indicated that the applicant was not medically disqualified for continuance on active duty, thereby precluding medical board action from being initiated. This memorandum further confirmed that while the applicant suffered from several medical conditions, they could all be treated after he was in a retired status.

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 1981, he was separated under the provisions of chapter 12, Army Regulation 635-200, for the purpose of retirement. It further confirms that he held the rank and pay grade of SFC/E-7 on that date.

Army Regulation 600-8-19 prescribes the Army’s enlisted promotion policy. Chapter 4 contains guidance on the centralized promotion process for the grades of E-7, E-8, and E-9. It states, in pertinent part, that soldiers will be selected for promotion to E-7, E-8, and E-9 by a centralized DA Promotion Selection Board, based on the best qualified as determined through the collective best judgment of the promotion board members. The current regulation nor any previous edition of the regulation ever provided provisions of automatic promotion at a given number of years of service.

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 Untied 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 have been automatically promoted to MSG/E-8 when he completed 26 years of service, and that his retired grade should be adjusted accordingly. However, the Board finds no evidentiary basis on which to grant this requested relief.

2. By regulation, soldiers are selected for promotion to the grades of E-7, E-8, and E-9 by a centralized DA Promotion Selection Board based on the best qualified, as determined through the collective best judgment of the promotion board members. There are not now nor have there ever been any provisions that provided for the automatic promotion of members to MSG/E-8 based on having completed 26 years of service.

3. By law, enlisted soldiers are retired in the rank and pay grade they hold on the date of their REFRAD, and retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty, as determined by the Secretary of the Army. In order to satisfy this requirement, a member must have been promoted to, held, and served in the higher rank and pay grade while on active duty, performing duties in a position authorized a higher pay grade does not satisfy this satisfactory service criteria of the advancement law.

4. The evidence of record confirms that the applicant held the rank and pay grade of SFC/E-7 on the date of his separation, and that this was the highest pay grade he attained while serving on active duty. It also verifies that he was never selected for promotion to MSG/E-8 by a properly constituted DA Promotion Selection Board. The record also confirms that he was never actually promoted to, held, or served in a higher pay grade while he was on active duty, and he has failed to provide independent evidence to the contrary.

5. In view of the facts of this case, the Board concludes that there is not a sufficient evidentiary basis to grant the applicant’s request that he be promoted to MSG/E-8, effective on the date he completed 26 years of active military service. It also finds that the applicant does not qualify for advancement on the Retired List because he never held a rank and pay grade above SFC/E-7 while he was serving on active duty. Thus, he does not meet the satisfactory service provisions of the advancement law. Therefore, the Board finally concludes that relief is not warranted in this case.

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6. 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.

7. 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

___FCJ__ _LLS____ __LE_ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084181
SUFFIX
RECON
DATE BOARDED	2003/05/29
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1981/11/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2. 310	131.0000
3.
4.
5.
6.