PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 March 2001
	DOCKET NUMBER:   AR2000049010

	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. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 disability retirement rank and pay grade be changed from specialist/E-4 (SPC/E-4) to sergeant/E-5 (SGT/E-5). 

3.  The applicant states, in effect, that he was promoted to the rank of SGT/E-5 on 2 August 1989 but on 3 August 1989 he was retired in the rank and pay grade of SPC/E-4.   

4.  The applicant’s military records show that he served in the Regular Army for 
7 years, 8 months, and 16 days, from 17 November 1981 to 2 August 1989, when he was released from active duty and placed on the Temporary Disability Retied List (TDRL), in the rank and pay grade of SPC/E-4.

5.  On 10 May 1989, the applicant was admitted to Walter Reed Army Medical Center (WRAMC), Washington D.C., as a patient and on 22 May 1989, he was evaluated by a Medical Evaluation Board (MEB) who made the following diagnosis:  “pituitary macroadenoma, suprasellar extension and hemorrhage leading to diabetes insipidus”; “limited pituitary-adrenal cortisol reserve”; and “pes planus.”  As a result of its findings the MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB) for disability processing.  

6.  The MEB Proceedings (DA Form 3947), which were approved on 23 May 1989, contained remarks that verified the applicant was assigned to the Medical Holding Detachment (MHD) at WRAMC and that the highest rank he held while on active duty was SPC/E-4, Promotable (P), which confirmed he held promotion standing list status as of that date.  

7.  Enclosed with the DA Form 3947 was a copy of the applicant’s Personnel Qualification Record Part I (DA Form 2).  This record contained a “P” entry in Section II (Qualification Data), Number 15 (Promotion Indicator), which confirmed that the applicant was on a valid promotion standing list to SGT/E-5 on that date and had been since at least 10 January 1989, the date the DA Form 2 was prepared. 

8.  On 2 June 1989, the applicant was evaluated by a PEB that convened at WRAMC.  This PEB determined that he was physically unfit for duty and assigned him a combined disability rating of 100 percent.  

9.  On 12 July 1989, Orders Number D133-47, published by the Total Army Personnel Command (PERSCOM), relieved the applicant from duty because of physical disability and placed him on the TDRL, in the rank and pay grade of SPC/E-4, effective on 2 August 1989.  Accordingly, on 2 August 1989, he was separated, under the provisions of Title 10 of the United Sates Code, section 1202, by reason of temporary disability, and on the following day placed on the TDRL in the rank and pay grade of SPC/E-4.  
10.  On 4 February 1993, the applicant was reevaluated by a PEB that convened at WRAMC.  As a result of this reevaluation, the PEB found the applicant was physically unfit for duty and recommended a combined disability rating of 
30 percent.  

11.  On 30 April 1993, PERSCOM published Orders Number D82-11, which removed the applicant from the TDRL, effective 30 April 1993, due to a permanent disability and on the following day placed him on the Retired List in the rank and pay grade of SPC/E-4.  

12.  In support of his request, the applicant submits a “Recommended List for Promotion of Enlisted Personnel” print out prepared on 2 June 1989 by the MHD at WRAMC.  This document contains the applicant’s name as an addition (handwritten) to the list.

13.  Title 10 of the United States Code, section 1202 provides the legal authority for placing members on active duty for more than 30 days on the TDRL.  It states, in effect, that upon a determination by the Secretary concerned a member who is determined to be unfit to perform the duties of their office, grade, rank, or rating because of a temporary physical disability incurred while on active duty may be placed on the TDRL and receive retired pay. 

14.  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. 

CONCLUSIONS:

1.  While there is no proof supporting the applicant’s claim that he was promoted on 2 August 1989, there is evidence that suggests he was on a valid promotion standing list prior to his disability processing.  Notwithstanding the actions taken by the Army, which placed him on both the TDRL and Retired List as a SPC/E-4, the Board finds sufficient reason to conclude that he should have been placed on these lists in the rank and pay grade of SGT/E-5.

2.  The evidence or record shows that the applicant was on a promotion standing list to the rank of SGT/E-5 prior to being placed on the TDRL, as a result of his having been selected for promotion by a properly constituted unit promotion selection board sometime prior to his disability processing. 
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.  Given his promotion list status, the Board presumes the applicant would have been promoted to SGT/E-5 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 finds his record should be corrected to show he was placed on the TDRL and Retired List as a SGT/E-5, and that he be provided all back pay and allowances due as a result. 

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 SGT/E-5 on 2 August 1989, the date he was placed on the TDRL, and on 
1 May 1993, the date he was placed on the Retired List by reason of permanent disability. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___fe___  __rjw____  __wdp __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000049010	
SUFFIX		
RECON		
DATE BOARDED	2001/03/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1989/08/02	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.