2001054498C070420

							                     MEMORANDUM OF CONSIDERATION


       IN THE CASE OF:



       BOARD DATE:    10 July 2001
       DOCKET NUMBER: AR2001054498

       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. Karol A. Kennedy                                 Chairperson
       Mr. Roger W. Able                                    Member
       Mr. Kenneth W. Lapin                                 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)
ABCMR Memorandum of                                               AR2001054498
Consideration (cont)

APPLICANT REQUESTS: In effect, that he be reinstated to the rank and pay
grade of master sergeant/E-8 (MSG/E-8).

APPLICANT STATES: In effect, that he was promoted to the rank and pay grade
of MSG/E-8 on 1 May 1990 and he provides the enclosed promotion order in
support of his application.

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

On 31 October 1990, he retired from the Regular Army, in the rank of sergeant
first class/E-7 (SFC/E-7), after completing 20 years, 1 month, and 7 days of
active military service.

On 14 March 1990, the applicant signed a Declination of Continued Service
Statement (DCSS) in order to submit a request for retirement in lieu of accepting
a permanent change of station (PCS).

On 26 March 1990, Orders Number 51-9, was issued by the Total Army
Personnel Command (PERSCOM). This order provided the authority for the
applicant’s promotion to MSG/E-8, effective 1 May 1990.

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of the
Department of the Army (DA) Form 2339 (Application for Voluntary Retirement),
submitted by the applicant and approved by the proper authority on 27 March
1990. In this request, the applicant requested retirement on 31 October 1990, in
the rank of SFC/E-7. The remarks section of the form indicated that he signed a
DCSS and was retiring in lieu of PCS.

On 31 October 1990, the applicant was honorably released from active duty
(REFRAD). The record contains a properly constituted DD Form 214
(Certificate of Release or Discharge From Active Duty), which was authenticated
by the applicant with his signature. This form shows that he was separated,
under the provisions of Title 10, United States Code, section 3914, by reason of
length of service retirement. In addition, it verifies that he was separated and
placed on the Retired List in the rank and pay grade of SFC/E-7.

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).



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ABCMR Memorandum of                                               AR2001054498
Consideration (cont)

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, 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 satisfactorily served in while on active duty.

Paragraph 12-8d specifies that soldiers with an approved retirement are in a
non-promotable status. Paragraph 12-9 contains the policy for retirement in lieu
of PCS and states, in pertinent part, that soldiers who receive alert orders for
PCS may request retirement in lieu of PCS. It further indicates that retirement
requests approved in lieu of PCS will not be withdrawn nor will the retirement
date be changed and stipulates that soldiers in this category must retire on the
approved retirement date.

Paragraph 12-10 contains the policy pertaining to the loss of Department of the
Army (DA) promotion standing list status upon approval of retirement. It states,
in pertinent part, that all noncommissioned officers in the pay grades of
E-6 through E-8 who are on a DA centralized promotion standing list will lose
standing list status upon being approved for retirement . It further indicates that
the names of soldiers in this category will be administratively removed from the
standing list and they will retire in the grade they hold.

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. Notwithstanding the promotion order provided by the applicant, the evidence
or record clearly shows he was in a non-promotable status on the effective date
of his promotion based on his approved retirement in lieu of PCS. By regulation,
this would have resulted in his name being administratively removed from the DA
promotion standing list MSG/E-8.

2. By law and regulation, advancement of soldiers on the Retired List is only
authorized when a member has held and satisfactorily served in that higher pay
grade while on active duty. The evidence of record confirms that the applicant
was placed in a non-promotable status as soon as his retirement in lieu of PCS
was approved by the proper authority. Therefore, the Board concludes he
performed no satisfactory active duty service in the rank and pay grade of
MSG/E-8 and is not eligible to advanced to that rank and pay grade on the
Retired List.

3. 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.
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ABCMR Memorandum of                                               AR2001054498
Consideration (cont)


4. 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

__KAK__ __RWA__ __KWL__ DENY APPLICATION




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




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ABCMR Memorandum of                     AR2001054498
Consideration (cont)


                            INDEX

CASE ID                AR2001054498
SUFFIX
RECON
DATE BOARDED           2001/07/10
TYPE OF DISCHARGE      HD
DATE OF DISCHARGE      1990/10/31
DISCHARGE AUTHORITY    AR 635-200 C12
DISCHARGE REASON       Retirement
BOARD DECISION         DENY
REVIEW AUTHORITY
ISSUES     1. 310      131.0000
ISSUES     1. 319      131.0900
           2.
           4.
           5.
           6.




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