PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  21 September 2000
	DOCKET NUMBER:  AR2000037058

	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:

	Ms. JoAnn Langston		Chairperson	
	Mr. Eric N. Anderson		Member	
	Mr. Curtis L. Greenway		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his disability severance pay be computed for pay grade E-7 instead of pay grade E-6.

3.  The applicant states that he believes the DOD Financial Management Regulation (DODFMR) authorizes computation at the higher grade because he had already been selected for promotion.  He submits copies of the DODFMR and the denial by the Defense Finance and Accounting System (DFAS) in support of his application.

4.  The applicant’s available military records show that he was serving on active duty in pay grade E-6 when he was approved for separation with disability severance pay.  Neither the Medical Evaluation Board nor the Physical Evaluation Board proceedings or recommendations are in the available record.

5.  Officials at the Total Army Personnel Command confirmed that he was selected for promotion to pay grade E-7 by the promotion selection board that adjourned on 28 June 1995.

6.  A 22 February 1996 message from the Department to his command directed the applicant be separated as a result of physical disability rated at 10 percent and authorized disability severance pay.  On 23 February 1996 his command published Orders 54-28 which transferred him for separation processing.  The order stated that he was authorized disability severance pay of 10 percent in pay grade E-6.

7.  Effective 29 February 1996 the applicant was separated in accordance with Army Regulation 635-40.  His report of separation (DD Form 214) shows that he had 10 years and 4 months creditable service and was authorized $34,854 in disability severance pay based on pay grade E-6.

8.  On 21 January 2000 the DFAS informed the applicant that his request for recomputation of severance pay at pay grade E-7 ($39,192) was denied.  It was the opinion of the DFAS that a member must have been placed on the Temporary Disability Retired List (TDRL) at the time they were considered for promotion.

9.  Title 10, U. S. Code, section 1212, paragraph (a) (C), provides members with disability severance pay based “on the date when he is separated, and in the permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he was separated and which was found to exist as a result of a physical examination for promotion.”

10.  Title 10, U. S. Code, section 1372, subparagraph (3), provides retirement for physical disability of a member in “the permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.”

11.  A review of the legislative history of Title 10, U. S. Code, section 1372, revealed that the National Defense Authorization Act of 1997 changed section 1372 “to clarify that disability retirements at the grade to which the service member would have been promoted, had it not been for an intervening physical disability, were authorized”.  No similar change was made to section 1212.

12.  Identical wording has been forwarded by the Department to be incorporated in the National Defense Authorization Act of 2002 to bring section 1212 in line with section 1372 based on an apparent oversight or omission.  

13.  Chapter 7, Army Regulation 600-200, in effect at the time, provided for the selection and promotion of enlisted personnel.  Neither the consideration eligibility criteria nor the selection and promotion acceptance criteria require a physical examination for promotion.

CONCLUSIONS:

1.  The applicant was properly considered and selected for promotion to pay grade E-7 prior to a Physical Disability Agency determination that he should be separated as a result of a physical disability.  He is entitled to have his disability severance pay recomputed for pay grade E-7.

2.  The applicant had no regulatory requirement to pass a physical examination for the purpose of promotion.  Recent legislative changes and the legislative history indicate that it was the intent of the law to provide physical disability retirement and physical disability separation pay at the grade the individual would have been promoted to had it not been for the intervening physical disability.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:

	a.  correcting his DD Form 214, in block 18 (remarks) to show that he was authorized disability severance pay of $39,192 based on pay grade E-7; and

b.  paying the applicant the difference between the amount he received and the amount he is entitled to by virtue of this correction.

BOARD VOTE:  

__jl___  __ea___  ___cg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000037058	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000921	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.