MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR2000036269

	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. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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 he be retired in the rank and pay grade of Sergeant Major/E-9 (SGM/E-9).  

APPLICANT STATES:  In effect, that he had been selected for promotion to SGM/E-9 in November 1970 but was retired, by reason of disability, prior to being promoted.  He indicates that in November 1972, he queried the Office of The Adjutant General (OTAG) in regard to whether or not he was eligible for placement on the Retired List as a SGM/E-9 because he had been selected for promotion to that rank and pay grade prior to his disability retirement, but received no reply from the OTAG.  He provides the four enclosed letters of appreciation, commendation, and recommendation is support of his application. 

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

On 31 October 1967, the applicant was released from active duty (REFRAD), by reason of length of service retirement, and placed on the retired list as a 
Master Sergeant/E-8 (MSG/E-8) after completing 20 years, 3 months, and 8 days of active military service.

On 1 July 1968, the applicant was involuntarily recalled to active duty and served until 2 April 1971, when he was REFRAD by reason of disability.  He was placed on the Permanent Disability Retired List (PDRL), in the rank and pay grade of MSG/E-8.  At the time of this separation, he had completed a total of 23 years and 11 days of active military service.  

On 11 October 1970, the applicant was admitted to the United States Army Hospital at Fort Carson, Colorado based on his experiencing shortness of breath over a two day period and his history of an irregular heart beat.  This condition led to the applicant being evaluated by a Medical Evaluation Board (MEB), which diagnosed him as suffering from heart disease, hyperuricemia, duodenal diverticulum, neurosensory hearing loss, and hemorrhoids.  Based on their diagnosis, the MEB determined that he was unfit for further military duty and they referred his case to the Physical Evaluation Board (PEB) for its disposition.

On 27 January 1971, the PEB convened to consider the applicant’s case.  They determined he was unfit for duty and recommended a combined disability rating of 80 percent and that he revert to a retired status.  As a result of the PEB findings and recommendations, the OTAG directed the applicant be REFRAD and that he revert to a retired status, in the rank and pay grade of MSG/E-8.

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that he held the rank of MSG/E-8, which he attained on 
11 September 1966 and the applicant last verified this data through an audit of his records on 11 November 1970.  The DA Form contains no remarks entry indicating that the applicant was selected for promotion to SGM/E-9. 
In addition, the applicant’s Military Personnel Records Jacket (MPRJ) contains no documents showing that he was ever selected by DA for promotion to 
SGM/E-9.  The record does contain a Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), signed by the applicant.  

The DD Form 214 contained in the record shows that the applicant was REFRAD, under the provisions of Army Regulation 635-40, by reason of permanent disability.  This form also shows that he was REFRAD and placed on the PDRL with a disability rating of 80 percent, in the rank and pay grade of MSG/E-8, after completing a total of 23 years and 11 days of active military service. 

The applicant has submitted the enclosed copy of a letter he submitted to the OTAG, dated 17 November 1971, in which he queried the OTAG in regard to his promotion status and his eligibility to have been retired in the rank and pay grade of SGM/E-9.  There is no response to this query provided and the applicant indicates that he never received a reply.  His service record is also silent on this issue.

Title 10 of the United States Code, section 1202 (10 USC 1202) provides the legal authority for the retirement of members determined to be unfit to perform military service because of physical disability incurred while entitled to basic pay. The law requires that the disability determination be based upon accepted medical principles, the disability is of a permanent nature and stable, and the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination. 

Title 10 of the United States Code, section 1372 (10 USC 1372) provides the legal authority for the grade on retirement of members retiring for physical disability.  It states, in pertinent part, that a member is entitled to the grade equivalent to the highest of the following: the grade or rank in which he is serving on the date when his name is placed Retired List.  It does allow for granting the highest rank in which he served satisfactorily or the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability.  

Title 10 of the United States Code, section 1402 (10 USC 1402) provides the legal authority for recomputation of retired or retainer pay to reflect later active duty of members.  It allows, in effect, for a recomputation of retired pay of a member placed on the Retired List for length of service who while serving on a subsequent period of active duty incurs a physical disability of at least 
30 percent.  

The law further allows, in effect, that a member in this category may receive retired pay to which entitled when originally retired with pay increases incorporating  applicable cost of living adjustments.  In addition, the law stipulates that a member covered by this law who was promoted to a higher grade in which they satisfactorily served while on active duty after retirement is entitled to retired pay to which they would be eligible to retire if initially retiring from active duty in that higher grade.  

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 contentions of the applicant and the letters he provided in support of his application, the Board found no evidence to show that he ever satisfactorily served on active duty as a SGM/E-9 or that he was ever selected for promotion to that rank by DA and placed on a valid promotion list prior to the commencement of his disability processing.  Thus, the Board finds no basis to support the requested relief. 

2.  Even if the applicant’s claim that he was selected for promotion to SGM/E-9 is true, this would still not entitle him to be placed on the Retired List and to receive retired pay as a SGM/E-9, under the provisions of 10 USC 1372.  The evidence of record indicates that his medical condition was discovered in October 1970, which was prior to the November 1970 date he claims to have been selected for promotion to SGM/E-9.  Therefore, the Board concludes that the applicant’s promotion to SGM/E-9 or his advancement on the Retired List to that rank and pay grade is not warranted.

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.

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

__klw ___  __sac ___  __amc__  DENY APPLICATION

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

INDEX

CASE ID	AR2000036269	
SUFFIX		
RECON		
DATE BOARDED	2000/07/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/04/02	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.