PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            1 August 2000
	DOCKET NUMBER:   AR2000037545

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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, in effect, that his retired rank and pay grade be changed from Chief Warrant Officer Two/W-2 (CW2/W-2) to Chief Warrant Officer Three/W-3 (CW3/W-3). 

3.  The applicant states, in effect, that he was selected for promotion to 
CW3/W-3 before he was placed on the Temporary Disability Retired List (TDRL) and that he worked hard to earn this promotion and believes he also deserves to be a CW3/W-3 on the Permanent Disability Retired List (PDRL) as well.  

4.  The applicant’s military records were not available for review by the Board.  However, the evidence or record does include a Department of Defense 
(DD) Form 214 (Certificate of Release or Discharge From Active Duty).  This form documents that the applicant was released from active duty (REFRAD) and placed on the TDRL on 2 November 1989.  It also shows that he held the rank of CW2/W-2 on the date of his REFRAD and that he was separated from active duty under the provisions of paragraph 4-24e(2), Army Regulation 635-40, by reason of physical disability-temporary.  

5.  The evidence or record includes documents provided by the applicant which verify that he was selected for promotion to CW3/W-3 prior to his being placed on the TDRL.  On 8 August 1989, the Commanding General of the 4th Infantry Division,  Fort Carson, Colorado issued a letter congratulating the applicant on his selection for promotion to CW3/W-3.  On 28 August 1989, the Commander of the 4th Aviation Brigade, 4th Infantry Division, Fort Carson, Colorado, also sent the applicant a letter, which also congratulated the applicant on his selection for promotion to CW3/W-3.

6.  In addition, the applicant provided for the record, a copy of the page containing his name from the 1989 promotion recommended list for CW3/W-3.  This verified that he had been recommended for promotion to CW3/W-3 and that he had been assigned a promotion sequence number of 393.  In addition, he also included a copy of a Military Personnel (MILPER) message, “Subject: Promotion Numbers for March 1990”, which was released by the Army Personnel Command (PERSCOM) on 24 January 1990.  This message indicated that the applicant’s sequence number would have been reached and he would have been promoted to CW3/W-3, effective 1 March 1990. 

7.  On 10 December 1992, the applicant provided a letter reply to the recorder of the Fort Lewis, Washington Physical Evaluation Board (PEB).  In this letter, he indicated that he concurred with the results of the PEB and their recommendation that he be permanently retired, except for the fact that he was being retired as a CW2/W-2.  He provided documents that he had received prior to his departing Fort Carson, Colorado and being placed on the TDRL, which he contended verified that he had been selected for promotion to CW3/W-3 prior to his being placed on the TDRL.
8.  On 25 January 1993, Orders Number D14-7, issued by PERSCOM, in effect removed the applicant from the TDRL and placed on the Permanent Disability Retired List (PDRL), effective 15 February 1993.  This order awarded a disability rating of 70 percent and indicated that the applicant would be retired in his current grade of rank, which they listed as CW2/W-2.  

9.  Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded members retiring for physical disability.  It states, in pertinent part, that at the time any member of an armed force who is retired for physical disability is entitled to the grade equivalent to the temporary or 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.  This law applies both at the time a member is placed on either the TDRL or the PDRL.

CONCLUSIONS:

1.  Notwithstanding the actions taken by the Army, which placed the applicant on both the TDRL and PDRL as a CW2/W-2, the Board finds sufficient reason to conclude that the applicant should have been placed on both lists as a CW3/W-3.

2.  The evidence or record shows that the applicant was selected for and assigned a sequence number for promotion to CW3/W-3 in August 1989, which was well before his being placed on the TDRL on 2 November 1989. 

3.  By law, the applicant was entitled to be placed on the TDRL, and subsequently on the PDRL, in the grade to which he would have been promoted had it not been for the physical disability for which he was retired.  Therefore, the Board finds, in the interest of justice and equity, that the applicant’s record should be corrected to reflect that he was placed on the TDRL and PDRL in the rank and pay grade of CW3/W-3.  In addition, the Board determines that it would also be appropriate to provide the applicant all back pay and allowances due as a result of this action.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the rank and pay grade of the individual concerned was CW3/W-3 on 2 November 1989, the date he was placed on the TDRL, and on 
15 February 1993, the date he was placed on the PDRL.

2.  That the individual concerned be provided all back pay and allowances due as a result the corrective action taken in the preceding paragraph. 

BOARD VOTE:  

___kak __  __dj ____  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______D. S. Jacobs______
		        CHAIRPERSON

INDEX

CASE ID	AR2000037545	
SUFFIX		
RECON		
DATE BOARDED	2000/08/01	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1989/11/02	
DISCHARGE AUTHORITY	AR 635-40 C4	
DISCHARGE REASON	Disability	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.