PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            2 November 2000
	DOCKET NUMBER:   AR2000040515

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		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 retirement rank be changed, from Staff Sergeant/E-6 (SSG/E-6) to Sergeant First Class/E-7 (SFC/E-7), on the Retired List.  

3.  The applicant states, in effect, that he was selected for promotion to 
SFC/E-7 and placed on the promotion list in December 1993, the same month he was released from active duty (REFRAD) and placed on the Retired List by reason of physical disability.  He claims that this promotion selection was made the same month he was being separated for physical disability based on the findings and recommendations of a medical board.  

4.  The applicant’s military records show that on 20 December 1993, he was REFRAD, in the rank and pay grade of SSG/E-6, under the provisions of Title 10 of the United States Code, section 1201 (10 USC 1201), by reason of physical disability (permanent) retirement.  At the time of his separation he had completed 15 years, 9 months, and 18 days of active military service and he held the rank and pay grade of SSG/E-6, which was the rank and pay grade in which he was placed on the Retired List. 

5.  The applicant’s Department of the Army (DA) Form 2-1 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that he attained the rank of SSG/E-6 on 4 September 1985 and that this was the highest rank he attained or held while on active duty.  In addition, his Military Personnel Records Jacket (MPRJ) contains no documentary evidence to show that he was ever selected for promotion by Department of the Army (DA) or that his name was ever added to a DA promotion selection list during his active duty tenure. 

6.  The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant with his signature on the date of his REFRAD, 20 December 1993.  The form verifies that he was separated, under the provisions of 10 USC 1201, by reason of permanent physical disability.  It also confirms that he held the rank of SSG/E-6 on the date of his separation, and that he was placed on the Retired List in that rank and pay grade on the day following his REFRAD. 

7.  In connection with the processing of this case, a member of the Board staff contacted the Promotions Branch of the Army Personnel Command to determine the applicant’s promotion status prior to separation.  This contact revealed that the applicant had been selected for promotion by a DA promotion selection board that adjourned on 19 November 1993, the month prior to the applicant’s separation.  The resultant promotion selection list was, however, not published until 17 February 1994, two months subsequent to his retirement.  

8.  10 USC 1201 provides the legal authority for disability retirement.  It states, in effect, that the Secretary concerned, upon determining that a member is unfit to perform the duties of their office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, may retire the member with pay.

9.  10 USC 1372 provides the legal authority for the grade assigned to members who retire by reason of physical disability.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, any member who is retired for physical disability is entitled to the grade they hold on the date they are placed on the Retired List; the highest grade or rank in which they served satisfactorily while on active duty; or the grade to which he would have been promoted had it not been for the physical disability. 

CONCLUSIONS:

1.  The Board finds the applicant’s claim, that he was selected for promotion to SFC/E-7 the same month he was REFRAD and placed on the Retired List by reason of physical disability, while not entirely accurate has some merit. 

2.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with applicable regulations, and that the rank and pay grade in which he was placed on the Retired List was proper at the time of his REFRAD.  At that point his record indicated that the highest rank he had attained, held, or in which he satisfactorily served while on active duty was SSG/E-6.  

3.  However, there is evidence to suggest that the applicant was selected for promotion to SFC/E-7, by a properly constituted DA promotion selection board, in November 1993, which was a month prior to his separation.  Given this fact, the Board finds there is a sufficient basis to conclude that the applicant would have been promoted to this rank and pay grade had it not been for his physical disability. 

4.  By law, a member who is being retired for physical disability may be placed on the Retired List in a rank and pay grade that he would have attained had it not been for the physical disability.  Therefore, in the interest of equity, the Board finds it would be appropriate to change the applicant’s rank and pay grade on the Retired List to SFC/E-7, as an exception to policy. 

5.  The Board also concludes that it would be appropriate to provide the applicant all back pay and allowances due as a result of the correction indicated in the preceding paragraph. 

6.  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 individual concerned was placed on the Retired List in the rank and pay grade of SFC/E-7.

2.  That the individual concerned be provided all back pay and allowances due as a result of the correction indicated in the preceding paragraph. 

BOARD VOTE:  

___tsk __  __wdb___  ___fe ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______Fred Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2000040515	
SUFFIX		
RECON		
DATE BOARDED	2000/11/02	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/12/20	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Permanent Physical Disability Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.