MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 November 2000
	DOCKET NUMBER:   AR2000041726

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Thomas E. Shaughnessy, Jr.		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 receive a promotion that he should have been granted prior to his being placed on the Temporary Disability Retired List (TDRL).

APPLICANT STATES:  In effect, that because of his accident that caused his disability retirement he did not receive a promotion he would have had if he not been retired.  He was due to be promoted and the action was not followed up after his accident.  He requests that his retirement grade be upgraded and he be advanced on the Retired List.  

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

In January 1978, while serving on active duty attending a course at Patrick Air Force Base, Florida the applicant was involved in a serious automobile accident. As a result of the injuries he received in this accident, the applicant was eventually evaluated by a Physical Evaluation Board (PEB) that convened at Fort Gordon, Georgia.  This PEB determined that he was physically unfit for duty and rated him at 80 percent disabled.  

On 2 April 1979, Orders Number D64-12, published by the Army Personnel Command (PERSCOM), relieved the applicant from duty because of physical disability and placed him on the TDRL, in the pay grade of E-6, effective on 
10 April 1979, under the provisions of paragraph 4-19a, Army Regulation 
635-40.  

On 10 April 1979, while a member of the Michigan Army National Guard (ARNG) serving on active duty, he was released from active duty (REFRAD), by reason of temporary disability, and on the following day placed on the TDRL in the rank and pay grade of Staff Sergeant/E-6 (SSG/E-6).  

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 33 (Appointments and Reductions) that he was first promoted to the rank and pay grade of SSG/E-6 on 13 September 1979 and that this is the highest rank he held.  In addition, his Military Personnel Records Jacket (MPRJ) contains no documents indicating that he was ever considered for or recommended for promotion to a higher pay grade.  

On 22 September 1980, a formal PEB found the applicant physically unfit for duty and recommended that he be permanently retired with a 80 percent disability rating and this recommendation was approved by the appropriate authority.  

On 14 November 1980, Order D222-18, published by PERSCOM, removed the applicant from the TDRL and on the following day placed him on the Retired List, by reason of permanent disability, in the rank and pay grade of SSG/E-6.  

Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded to 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 a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the TDRL; the highest grade in which he served satisfactorily; the grade to which he would have been promoted.  This law applies both at the time a member is placed on the TDRL or the Retired List based on a permanent disability. 

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

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 applicant’s contention that he should have been promoted to higher rank and pay grade prior to being placed on the TDRL and his request that he now be advanced on the Retired List.  However, after carefully examining the evidence, the Board finds this claim lacks merit.

2.  The evidence of record contains no indication that the applicant was ever recommended or selected for promotion to higher grade prior to his being placed on the TDRL or that he ever held or satisfactorily served in a higher rank and pay grade.  Therefore, the Board finds relief is not warranted in this case.  

3.  While the law allows that members retiring for physical disability to 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 and selected for promotion are not denied those advancements because their careers are cut short by physical disability.  The Board finds no evidence that this was the situation that existed at the time the applicant was placed on the TDRL.

4.  In addition, by law and regulation, an enlisted member retires in the rank and grade they hold on the date they are REFRAD.  Advancement on the Retired List is only authorized when a member has satisfactorily served in a higher pay grade while on active duty.  A member must have been promoted to and held a higher rank in order to receive a satisfactory service determination, there is no evidence or record that shows that the applicant ever held or served in a higher pay grade prior to being placed on the TDRL. 

5.  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.

6.  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

___tap___  ___ra___  ___ts ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041726	
SUFFIX		
RECON		
DATE BOARDED	2000/11/21	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1979/04/10	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Physical Disability	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.