PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 October 2000
	DOCKET NUMBER:   AR2000040566

	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. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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 First Sergeant/E-8 (1SG/E-8) to Sergeant Major/E-9 
(SGM/E-9).

3.  The applicant states, in effect, that he was on the promotion standing list for SGM/E-9 when he was forced to retire due to a medical condition.  His counsel states, in effect, that although the applicant is ineligible for advancement on the Retired List based on his disability, he was on the SGM/E-9 promotion standing list prior to his incurring the disability that led to his retirement.  They also point out that the law entitles a member retiring due to a physical disability to retire in the grade equivalent to the grade to which he would have been promoted had it not been for the physical disability.  In light of this provision of the law, counsel asks that the Board render a favorable decision in this case. 

4.  The applicant’s military records show that he was a member of the United States Army Reserve (USAR) and assigned to the 1015th Maintenance Company, Fort Gillem, Georgia, where he served in the rank and pay grade of 1SG/E-8.

5.  On 8 September 1984, the commander of the 81st Army Reserve Command (ARCOM) published Circular Number 140-139.  The subject of this circular was “Army Reserve 81st ARCOM E7, E8, and E9 Promotion List” and its purpose was to announce the results of a senior enlisted promotion board that had convened on 25 August 1984.  

6.  Appendix A to the  81st ARCOM Circular 140-139 contained a list of the names of members recommended for promotion by this board.  Page 1 confirms that the applicant was recommended for promotion and added to the promotion standing list, in military occupational specialty 43E (Parachute Rigger), with a total of 918 promotion points.  

7.  On 10 September 1985, the applicant’s promotion list status was reconfirmed in an 81st ARCOM letter.  This letter verified the applicant’s promotion points had been recomputed and his new promotion point total would be added the promotion standing list published in 81st ARCOM Circular 140-158, which incorporated the results of the August 1985 senior enlistment promotion selection board.  

8.  On 4 January 1988, the applicant was ordered to active duty for a period of 124 days.  On  30 January 1988, he presented himself at Womack Army Hospital, Fort Bragg, North Carolina with symptoms consistent with a stroke.  He was further evaluated by medical personnel at Walter Reed Army Medical Center, Washington D.C. who recommended that he be returned to Fort Bragg for physical disability processing.
9.  On 22 April 1988, a Physical Evaluation Board (PEB) that convened at Fort Bragg found that the applicant was physically unfit for duty and rated him at 
100 percent disabled.  On 7 June 1988, Orders Number D110-13, published by the Army Personnel Command (PERSCOM), relieved the applicant from duty because of physical disability and placed him on the Temporary Disability Retired List (TDRL), in the pay grade of E-8, effective on 29 June 1988, under the provisions of Title 10 of the United States Code, section 1205 (10 USC 1205).

10.  On 20 July 1992, a formal PEB found the applicant physically unfit for duty and recommended that he be permanently retired with a 70 percent disability rating and this recommendation was approved by the appropriate authority.  On 17 August 1992, Order D162-50, published by PERSCOM, removed the applicant from the TDRL and on the following day placed him on the Permanent Disability Retired List (PDRL), in the rank and pay grade of 1SG/E-8. 

11.  10 USC 1205 provides the legal authority for placing members on active duty for 30 days or less on the TDRL.  It states, in effect, that a member on active or in-active duty for training who is determined to be unfit to perform the duties of his office, grade, rank, or rating because of physical disability, may be retired by the Secretary concerned with retired pay if it is determined that the disability was incurred before September 24, 1996, as the proximate result of performing active duty or inactive-duty training.

12.  10 USC 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 is retired for physical disability they are 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.

CONCLUSIONS:

1.  Notwithstanding the actions taken by the Army, which placed the applicant on both the TDRL and PDRL as a 1SG/E-8, the Board finds sufficient reason to conclude that the applicant should have been placed on the TDRL and subsequently on the PDRL in the rank and pay grade of SGM/E-9.

2.  The evidence or record shows that the applicant held promotion standing list status to the rank of SGM/E-9 prior to being placed on the TDRL.  This status was based on his being selected for promotion by a properly constituted USAR senior enlisted promotion selection board that was convened by the 81st ARCOM in August 1994. 

3.  By law, members retiring for physical disability should be retired in the rank to which they would have been promoted had it not been for the disability.  The intent of the law is clearly to ensure that members whom the Army has identified as being fully qualified for promotion through the promotion board selection process are not denied those advancements because their careers are cut short by physical disability.

4.  Based on the applicant’s promotion list status, the Board presumes that he would have been promoted to SGM/E-9 at some point prior to his normal retirement had his service not been cut short because of his physical disability.  Thus, in the interest of justice and equity, the Board concludes the applicant’s record should be corrected to show he was placed on the TDRL and PDRL as a SGM/E-9, and that it would be appropriate to provide him all back pay and allowances due as a result of this action. 

5.  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 SGM/E-9 on 29 June 1988, the date he was placed on the TDRL, and on 
18 August 1992, 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:  

__esc___  __mlkp __  ___jm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR2000040566	
SUFFIX		
RECON		
DATE BOARDED	2000/10/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1988/06/29	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	TDRL/PDRL	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.