MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR2000038457

	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 Colonel/O-6 (COL/0-6).

APPLICANT STATES:  In effect, that by law he should have been entitled to retire in the rank and pay grade to which he had been selected based on his being retired by reason of physical disability.  He claims that because the law states that a member retiring for physical disability is entitled to the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability.  He indicates that on 1 February 1997 he was retired for physical disability and prior to his retirement he had been selected by Department of the Army (DA) for promotion to COL/0-6.  He provides a copy of a memorandum from the Chief of Reserve Component (RC) Promotions, Army Reserve Personnel Command (ARPERSCOM), dated 2 October 1992 in support of his application.  

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

On 7 June 1975, after serving as both an enlisted member and officer in the United States Marine Corps (USMC) and the USMC Reserves (USMCR), the applicant was appointed a Captain in the United States Army Reserve (USAR) and Army National Guard (ARNG).  

He was initially assigned as the Assistant Operations and Training Officer for Headquarters and Headquarters Detachment of the Massachusetts ARNG.  He was promoted to the rank of Major (MAJ) on 1 March 1982 while serving as an Assistant Operations Officer for the 26th Infantry Division, Boston Massachusetts.

On 19 May 1988, while serving on active duty in an AGR status, the applicant was promoted to the rank of Lieutenant Colonel/0-5 (LTC/0-5).  At the time of his promotion he was assigned to the State Army Reserve Command (STARC) for Massachusetts and was filling a position authorized a LTC/O-5.

The applicant provided a memorandum, dated 2 October 1992, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, issued by ARPERSCOM, which indicated that he had been selected for promotion to 
COL/0-6  by an RC selection board, this memorandum was not contained in his Military Personnel Records jacket (MPRJ).  

The applicant’s Department of the Army (DA) Forms 2 and 2-1 (Personnel Qualification Records) show that, as of 24 April 1996, he held the rank of 
LTC/0-5 and was serving on active duty in an AGR status in a LTC position.  The DA Forms 2 and 2-1 show that the highest rank attained by the applicant was LTC/0-5 and there is no record entry that verifies he ever held promotion list status to COL/0-6.  His MPRJ contains documents that verify that, subsequent to the date of the promotion memorandum referred to in the preceding paragraph, he actually accepted three specific AGR tours of duty as a LTC/0-5 and that he was considered and selected for retention on active duty, in an AGR status, as a LTC/0-5 by the 1994 Selective Retention Board. 

The applicant was separated from active duty on 31 January 1997 by reason of length of service retirement.  However, on 9 October 1998, this Board rendered a decision that resulted in his records being corrected to show that the reason for his retirement was disability and that he was placed on the Permanent Disability Retired List (PDRL), under the provisions of Title 10 of the United States Code, section 1201 (10 USC 1201), by reason of permanent disability.  

The Board decisional document also confirmed that the applicant was given a disability rating of 50 percent, in accordance with the Veterans Administration Schedule for Rating Disabilities.  Further, it showed that his retired pay would be computed based on his completion of 20 years, 6 months, and 16 days of active military service and that he would be entitled to retired pay in the rank and pay grade of LTC/O-5.

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 duties of their office, grade, rank, or rating because of physical disability incurred while entitled to basic pay.  The law requires, in pertinent part, 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 for which he is retired and which was found to exist as a result of a physical examination.

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 memorandum provided by the applicant, the Board found no evidence to suggest that the applicant had ever satisfactorily served on active duty as a COL/0-6 or that he was in a promotable status, pending promotion to COL/0-6, prior to his being placed on the PDRL.  Thus, the Board finds no basis to support the requested relief. 

2.  The evidence of record shows that the applicant was serving on active duty, in an AGR status, as a LTC/0-5 when he began disability processing.  His record contains a DA memorandum, dated 21 November 1994, which verifies that he was selected for retention in an AGR status as a LTC//0-5 by the 1994 DA Selective Retention Board.  The record further confirms that he was placed on the PDRL in the rank of LTC/0-5 in 1997 and there is no indication that he was ever selected for promotion or was on a COL-0/6 promotion list when he was placed on the PDRL. Therefore, the Board concludes that the applicant’s promotion to COL/06 or his advancement on the Retired List in that rank is not warranted in this case.  

3.  Lacking evidence to the contrary and given the evidence or record, the Board must presume that the applicant, if he had in fact been on a valid promotion list at some earlier time, either declined the promotion or was removed from the promotion list by DA sometime prior to his being selected for AGR retention as a LTC/0-5 in 1994 and being placed on the PDRL in 1997.  Therefore, the Board finds no evidentiary basis to support the applicant’s claim of entitlement, under the provisions of 10 USC 1372, to placement on the PDRL and retired pay as a COL/0-6. 

4.  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.

5.  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

__sac ___  ___klw__  ___amc__  DENY APPLICATION

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

INDEX

CASE ID	AR2000038457	
SUFFIX		
RECON		
DATE BOARDED	2000/07/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/01/31	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability/PDRL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.