RECORD OF PROCEEDINGS


         IN THE CASE OF:
                                   

         BOARD DATE: 10 February 2004
         DOCKET NUMBER: AR2003090480


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda M. Barker		Member
Mr. Richard T. Dunbar		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his retirement orders be revoked, that he be reinstated on active duty, and that he be reinstated on the 2002 sergeant major (SGM) promotion list.

2. The applicant states that he submitted a request to withdraw his retirement orders with the support of his commander but the Retirements and Separations Branch, Total Army Personnel Command (PERSCOM) denied it. He was told a retirement could not be revoked to accept a promotion but if the SGM Branch had a requirement for him they could make a case for his return with the Army Deputy Chief of Staff, G-1 (ODCS, G-1). The SGM Branch later told him that the food service field needed SGMs and he was provided guidance on how to reapply. He submitted a second request but learned it was never forwarded by the installation.

3. The applicant goes on to state that he was in constant contact with the SGM Branch on the status of his request between 5 February and 8 April 2003. The Retirements and Separations Branch, PERSCOM denied his request again. His installation contacted the Retirements and Separations Branch, PERSCOM, by telephone and was told that there was no support for his request and he had waited too late for reinstatement and needed to apply to this Board for consideration. He knows that he made a sudden decision to retire based on personal problems but he should have been given a chance to return to active duty since he had only been on terminal leave for 3 weeks.

4. The applicant provides a letter of support from his former commander with his request for withdrawal of retirement orders, and copies of e-mails concerning his request.

CONSIDERATION OF EVIDENCE:

1. At the time of the applicant's request for voluntary retirement he was serving on active duty in the pay grade of E-8 as a Senior Food Service Management Noncommissioned Officer (NCO).

2. On 4 October 2002, the applicant submitted a request for 20 days permissive temporary duty and 95 days of terminal leave commencing on 27 December 2002 in conjunction with his request for voluntary retirement. On 10 October 2002 he submitted his request for voluntary retirement effective 1 April 2003. This request showed that he would complete 21 years, 2 months, and 4 days Active Federal Service as of 31 March 2003. His request also contained the statement above his signature that he was not being considered for promotion to the next higher grade.

3. A 10 October 2002 memorandum to the applicant's brigade commander stated that the applicant's request for retirement on 1 April 2003 was approved. Retirement orders for the applicant were published on 16 October 2002 showing his effective date of separation as 31 March 2003 and effective date of retirement as 1 April 2003.

4. On 16 January 2003 the Calendar Year 2002 Sergeant Major selection board results were released. The results show that this board convened on 1 October 2002, adjourned on 18 October 2002, and the applicant had been selected for promotion.

5. The e-mail provided by the applicant begins with a comment on 4 February 2003 from the Retirements and Separations Branch, PERSCOM to Fort Lee, Virginia that current policies did not allow for enlisted soldiers in the applicant's situation to revoke their retirement to accept promotion. It went on to state that if the SGM Branch wanted him back they would have to make a case to the ODCS, G-1.

6. The final e-mail comment on 5 February 2003 from Fort Lee, Virginia to the applicant's former brigade notes that the attempt to return the applicant to active duty had failed and he would have to retire.

7. The applicant provides a copy of a 24 February 2003 Personnel Action request to withdraw his retirement orders. On the request the applicant states that he understands that once a retirement is approved he is no longer eligible for promotion. The justification noted on the request is based on his experience during the Gulf War and his future use during Operation Enduring Freedom. His former company commander, who recommended approval, signed his request.

8. The applicant provides a copy of a memorandum, dated 24 March 2003, from his former brigade commander in support of the request to terminate the applicant's approved retirement and reinstatement him on the SGM promotion list. The commander noted that there was a shortage in the applicant's military occupational skill and approval of the request would improve that career field. The applicant provides no copies of a response to this request nor is there any correspondence in the available record concerning this request.

9. Army Regulation 635-200 provides the policy for enlisted separations from active duty. The regulation provides that NCOs above the pay grade of E-5 who are on a centralized promotion list will lose promotion list standing upon approval of retirement. Their names will be administratively removed from the promotion list and they will retire in the grade held. If a soldier has retirement orders withdrawn, they will be considered for promotion by the next regularly scheduled board if eligible.

10. The regulation also provides that a soldier's retirement will not be withdrawn unless it is established that it will be for the convenience of the government or will prevent an extreme hardship for the soldier or immediate family.

DISCUSSION AND CONCLUSIONS:

1. The applicant is not entitled to have his retirement orders revoked, be reinstated on active duty, and reinstated on the 2002 SGM promotion list. He has not shown error or injustice in his voluntary retirement or the disapproval of his request by Departmental officials.

2. The applicant's contentions have been noted; however, the applicant stated in his retirement request that he was not being considered for promotion when he knew, or should have known that he was under consideration for SGM prior to his request for retirement.

3. The regulation is clear that only for the convenience of the government or to prevent serious hardship to the soldier will a request for revocation of an approved retirement be considered. The applicant did not make an issue of either situation and, as such, was not eligible for a return to active duty under the circumstance he presented.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__js___ ____lb____ __rd____ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                                             ___John N. Slone___
                                             CHAIRPERSON

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INDEX

CASE ID	AR2003090480
SUFFIX
RECON
DATE BOARDED	20040210
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.03
2.	131.00
3.
4.
5.
6.