MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 February 2001
	DOCKET NUMBER:   AR2000047730

	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. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Melvin H. Meyer		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 and pay grade should be changed to first sergeant/E-8 (1SG/E-8).

APPLICANT STATES:  In effect, that he accepted a 1SG/E-8 position with the 34th Support Battalion and was promised that a promotion would follow.  He claims that he also later served as the sergeant major of the same battalion. 

COUNSEL STATES:  In effect, that they recognize the contentions of the applicant,  They indicate their awareness that the applicant claims that he was told that upon his assignment to an E-8 position that a promotion would follow.  Counsel concludes by requesting the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  

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

On 15 February 1972, a Physical Evaluation Board (PEB) convened at Fort Hood, Texas to determine if the applicant was medically fit for duty.  The PEB determined, based on his medical condition, that the applicant was physically unfit for duty and recommended he be permanently retired with a combined disability rating of 40 percent.  As a result of the PEB findings and recommendations, the Office of the Adjutant General (OTAG) directed he be REFRAD and placed on the Retired List, in the grade of SFC/E-7, on 13 May 1972.

On 12 May 1972, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 1201, by reason of permanent physical disability retirement.  At the time of his REFRAD he had completed a total of 20 years, 2 months, and 14 days of active military service, and held the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  On the day following his REFRAD he was placed on the Retired List in that rank and pay grade. 

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that he held the rank of SFC/E-7, which he attained on 
17 August 1968.  The DA Form contains no remarks entry indicating that the applicant was selected for promotion or that he was on a promotion standing list for promotion to 1SG/E-8 at the time of his retirement. 

In addition, the applicant’s Military Personnel Records Jacket (MPRJ) contains no documents showing that he was ever selected for promotion to 1SG/E-8.  The record does contain a Data for Retired Pay (AGPZ Form 977) that was prepared on the applicant during his retirement processing and a Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), signed by the applicant.  
The AGPZ Form 977 shows that he was being placed on the Retired List as an SFC/E-7 and this was the highest rank and pay grade he ever held while on active duty.  The DD Form 214 on file, which the applicant verified with his signature, confirms that he was REFRAD on 12 May 1972, by reason of permanent disability with a disability rating of 40 percent, and that on the following day he was placed on the Retired List, in the rank and pay grade of SFC/E-7.  

Title 10 of the United States Code, section 1201 (10 USC 1201) provides the legal authority for the retirement of members determined to be unfit to perform military service because of physical disability incurred while entitled to basic pay. The law requires that the disability determination be based upon accepted medical principles, the disability is of a permanent nature and stable, and the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination. 

Title 10 of the United States Code, section 1372 (10 USC 1372) provides the legal authority for the grade on retirement of members retiring for physical disability.  It states, in pertinent part, that a member is entitled to the grade equivalent to the highest of the following:  the grade or rank in which he is serving on the date when his name is placed Retired List; the highest rank he held and in which he served satisfactorily; or the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability if he were on a valid promotion selection list on the date of his retirement. 

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.  Notwithstanding the contentions of the applicant, the Board finds no evidence to suggest that he ever was selected for, promoted to, or held the rank and pay grade of 1SG/E-8 during his tenure on active duty. 

2.  By law, members retiring for disability are entitled to be placed on the Retired List in the highest of the following:  the rank and pay grade they held on the date of their REFRAD; the highest rank and pay grade they held and in which they served satisfactorily while on active duty; or the rank and pay grade to which they would have been promoted had it not been for the physical disability.

3.  Under the provisions of the applicable law, service in a position calling for the higher rank and pay grade alone is not a sufficient basis for receiving a satisfactory service determination.  In order to receive a satisfactory service determination for the purpose of being placed on the Retired List in a higher grade it must be established that the member was promoted to, held, and satisfactorily served in that higher grade while on active duty. 

4.  To be retired in a higher grade which would have been attained had it not been for the disability, it must be established that a member was selected for promotion and placed on a valid promotion standing list by Department of the Army prior to being REFRAD.

5.  The applicant’s DA Form 20 and MPRJ contains no record entries or documentation that would suggest he was ever selected for, promoted to, or held a rank and pay grade higher than SFC/E-7 while serving on active duty. Thus, the Board finds no basis on which to support the requested relief. 

6.  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.

7.  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

___js ___  ___ra ___  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000047730	
SUFFIX		
RECON		
DATE BOARDED	2001/02/27	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1972/05/12	
DISCHARGE AUTHORITY	10 USC 1201 	
DISCHARGE REASON	Permanent Disability-Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.