MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 October 2000
	DOCKET NUMBER:   AR2000040066

	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. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L.  Pinson		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 his rank be changed from Corporal (CPL) to Sergeant First Class (SFC). 

APPLICANT STATES:  In effect, that he was given a battlefield promotion on 
15 March 1953 and was later wounded on 23 March 1953.  He was medically evacuated to Walter Reed Hospital in Washington D.C. and received a medical discharge on 31 October 1953.  He claims that he received a battlefield promotion that never followed him through this process.  In support of his application, he provides the following enclosed documents:  an expanded individual statement, a copy of his separation document, a copy of special orders placing him on the Permanent Disability Retirement List (PDRL), a clinical abstract, and a letter from the Department of Veterans Affairs (VA) attesting to the fact that he is permanently disabled due to disabilities incurred during the Korean Conflict.  

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

The applicant served on active duty from 2 January 1951 to 31 October 1953, at which time he was released from active duty (REFRAD), by reason of physical disability, in the rank and pay grade of CPL/E-4.  On the day following his REFRAD he was placed on the PDRL in that rank and pay grade. 

The applicant’s Department of Defense (DD) Form 230 (Service Record) verifies, in Section 2 (Appointments, Promotions, or Reductions), that he attained the rank of CPL/E-4 on 18 February 1953.  The record contains no information to suggest that he was ever promoted to or held a higher rank and pay grade while serving on active duty.  

The record includes a War Department (WD) Adjutant General Office (AGO) Form 8-118 (Medical Evaluation Board (MEB) Proceedings), pertaining to the applicant.  This document confirms that on 14 October 1953, a MEB evaluated the applicant based on a medical condition he incurred as a result of being wounded in action in Korea on 23 March 1953.  As a result of their evaluation, the MEB recommended that applicant be referred to a Physical Evaluation Board (PEB) for its necessary action.

On 19 October 1953, a PEB convened, with the applicant and his counsel present, to determine the applicant’s fitness for duty.  The PEB found the applicant permanently unfit for further military service based on the complete paralysis of his left radial nerve due to a combat incurred wound received in the line of duty.  The PEB rated the applicant as being 60 percent disabled as a result of this condition.  On 20 October 1953, the applicant concurred with the PEB findings and on 23 October 1953, the PEB proceedings were approved by the appropriate authority.  

On 30 October 1953, Department of the Army (DA) directed the applicant’s disability retirement in the rank and pay grade of CPL/E-4.  The DA retirement packet included an AGO Form 0388 (Statement of Service Enlisted Personnel-Retirement).  Block 11 (All Grades Held) of this form indicated that CPL/E-4 was the highest grade the applicant held on active duty.  The packet also contained an AGO Form 01464 (Determination of Grade for Retirement, Advancement, Separation or Retirement Pay-Enlisted Personnel).  This form verified that the applicant was eligible for permanent disability retirement in the highest grade he satisfactorily held while on active duty, which was identified as CPL/E-4, and that this was highest rank and pay grade the applicant ever held while serving on active duty. 

The evidence of record also includes a properly constituted DD Form 214 (Report of Separation From the Armed Forces of the United States), which was authenticated by the applicant with his signature.  This document verifies that the applicant was REFRAD on 31 October 1953, by reason of physical disability, in the rank and pay grade of CPL/E-4, and that he was placed on the PDRL the following day in that rank and pay grade.  

Title 10 of the United States Code, section 1372 provides the legal authority for the retirement grade applicable to member who are retired by reason of physical disability.  It states, in effect, that a member who is retired for physical disability is entitled to the grade he holds on the date of his REFRAD, the highest grade in which he satisfactorily held and served in on active duty, or the grade to which he would have been promoted had it not been for the physical disability. 

Title 10 of the United States Code, section 3964 contains the legal authority for the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and satisfactorily served in while on active duty. 

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.  The Board noted the contention of the applicant that he received a battlefield promotion to the rank of SFC that never followed him through his disability processing and that he should hold that rank on the PDRL.  However, there is no evidence to support this claim.  The record shows that CPL/E-4 was the highest rank and pay grade the applicant held while on active duty.  Therefore, the Board finds no basis to change the applicant’s rank to SFC.

2.  Additionally, by law and regulation, advancement of soldiers on the Retired List is only authorized when a member has held and satisfactorily served in that higher pay grade while on active duty.  Notwithstanding the applicant’s contention, there is no evidence to suggest that he ever held or served in a rank and pay grade above CPL/E-4 while on active duty.  Thus, the Board concludes his advancement to the rank of SFC on the Retired List 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

__cjp ___  ___ewl __  ___tp ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040066	
SUFFIX		
RECON		
DATE BOARDED	2000/10/19	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1953/10/31	
DISCHARGE AUTHORITY	SR 600-480-5	
DISCHARGE REASON	Physical Disability	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.