PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            28 November 2000
	DOCKET NUMBER:   AR2000043804

	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 Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, Jr.		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 rank and pay grade at the time of his retirement be changed from private first class/E-3 (PFC/E-3) to corporal/E-4 (Cpl/E-4). 

3.  The applicant states, in effect, that he was promoted to Cpl/E-4 before he was placed on the Retired List and that he would like his rank changed to show this grade which he held prior to his being retired for physical disability.  

4.  The applicant’s military records show that on 31 October 1951 he was released from active duty (REFRAD) by reason of permanent disability after completing 2 years, 10 months, and 17 days of active military service and that he was placed on the Retired List the following day.

5.  The evidence or record includes a Department of Defense (DD) Form 214 (Report of Separation From the Armed Forces of the United States).  This form documents that at the time of his separation the applicant had completed 
2 years, 10 months, and 17 days of active military service.  It also confirms that on the date of his REFRAD he held the rank and pay grade of Cpl/E-4, which he had attained on 23 August 1951.  

6.  There is a War Department (WD) Adjutant General Office (AGO) Form 
24A (Service Record) on file.  This document confirms that the applicant was promoted to the rank and pay grade of Cpl/E-4 via Detachment Order Number 
6, issued by the 9901st Medical Holding Detachment, Washington D.C. on 
23 August 1951.  

7.  The record also includes a copy of Special Order Number 200, dated 
27 August 1951, which assigned the applicant to a duty station in Martin, Kentucky pending final DA action and processing of his PEB.  This order confirms, in the standard name line, that the applicant held the rank of Cpl/E-4 on the date this order was published.  

8.  On 23 October 1951, a letter published by the Commanding General of Walter Reed Army Hospital authorized the applicant’s retirement by reason of physical disability based on the findings of a Physical Evaluation Board (PEB), convened on 23 August 1951, as modified and approved by the Secretary of the Army.  This letter also indicated that the applicant be retired and receive physical disability retirement pay in the rank and pay grade of PFC/E-3 based on that being the highest rank he held while on active duty. 

9.  On 13 September 2000, a member of this Board’s staff contacted the Defense Finance and Accounting Service (DFAS) and confirmed that the applicant was receiving retired pay as a PFC/E-3.

10.  Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded members retiring for physical disability.  It states, in pertinent part, that a member who is retired by reason of physical disability is entitled to be retired in the rank and pay grade in which he is serving on the date when his name is placed on the Retired List. 

CONCLUSIONS:

1.  Notwithstanding the actions taken by the Army, which placed the applicant on the Retired List in the rank and pay grade of PFC/E-3, the Board finds sufficient reason to conclude that the applicant should have actually been placed on the Retired List in the rank and pay grade of Cpl/E-4.

2.  The evidence or record confirms that the applicant was promoted to the rank and pay grade of Cpl/E-4 on 23 August 1951, a little over two months prior to his being REFRAD and placed on the Retired List, in the rank and pay grade of PFC/E-3, on 31 October 1951.  

3.  By law, the applicant was entitled to be retired in the rank and pay grade in which he is serving on the date when his name is placed on the Retired List.  
Therefore, the Board finds, in the interest of justice and equity, that the applicant’s record should be corrected to reflect that he was placed on the Retired List in the rank and pay grade of Cpl/E-4.  

4.  In addition, the Board concludes that it would also be appropriate to provide the applicant 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 Cpl/E-4 on 31 October 1951, the date he was placed on the Retired List.

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:  

__mkp __  __wh____  ___jhk __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Margaret K. Patterson___
		        CHAIRPERSON

INDEX

CASE ID	AR2000043804	
SUFFIX		
RECON		
DATE BOARDED	2000/11/28	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1951/10/31	
DISCHARGE AUTHORITY	AR 600-450	
DISCHARGE REASON	Disability Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.