MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 February 1999                  
	DOCKET NUMBER:   AC9812728

	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. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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:  That his military records be corrected to show that he was separated in pay grade E-4, vice E-3.

APPLICANT STATES:  In essence, that his disability severance pay was based on pay grade E-3; however, his commander advanced him to pay grade E-4 prior to his separation and therefore the amount of pay he received was incorrect.

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

He entered active duty on 12 January 1988.  He served as an infantryman and attained pay grade E-3.

During April 1989 he injured his right knee "secondary to a pile on while playing frisbee."  Despite treatment which included wearing a knee brace for 6 weeks, his knee continued to "lock" and "give way" and he was referred to a physical evaluation board (PEB).

On 14 November 1989 his commander recommended that he be advanced to pay grade E-4 with an effective date of 9 December 1989.

On 22 November 1989 a PEB found him physically unfit, rated his right knee condition as 20 percent disabling, and recommended that he be separated from the service with entitlement to disability severance pay.

On 28 November 1989 the finding and recommendation was approved for the Secretary of the Army.

On 21 December 1989 he was honorably discharged with entitlement to disability severance pay in the amount of $3,435.60.

VA documents are not in the available records.

The Department of Defense Military Pay and Allowances Manual, paragraph 40433, provides that disability severance pay will be computed by multiplying the sum of 2 months of basic pay times the number of years of active service. (The disability rating is not used in the computation).

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-200, Enlisted Personnel Management System, paragraph 7-6, and Army Regulation 601-280, paragraph 2-20, provide that a basic criteria for any advancement/promotion is that the individual is physically able to perform his or her military duties; and that an individual being separated for physical disability is not eligible for advancement/promotion or for reenlistment. 

Title 38, United States Code, Sections 310 and 331, permits the VA to award compensation for disabilities which it determines were incurred in or aggravated by active military service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The PEB finding of unfitness was approved for the Secretary of the Army on 28 November 1989.  Accordingly, the applicant was in a non-promotable status on 9 December 1989, the proposed effective date of his advancement/promotion.

2.  As an aside and not considered as part of the Board's decision, the Board notes that the applicant was honorably discharged approximately 10 years ago; and that he should have subsequently filed a claim with the VA for any injuries or illnesses that he feels were related to his military service.  Although VA compensation is not awarded until Army disability severance pay has been recouped by that agency, it is likely that the VA amount of compensation, over a period of time, would far exceed that of his disability severance pay.  However, the choice of accepting VA compensation in lieu of Army disability severance pay is a personal decision and it is therefore not a matter within the purview of this Board.

3.  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_____  AAO____  VBC____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12728/AR1999017093	
SUFFIX	NA	
RECON	NA	
DATE BOARDED	1999 February 4	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.08	
2.		
3.		
4.		
5.		
6.