MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 February 2001
	DOCKET NUMBER:   AR2000049101

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Harry B. Oberg		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:  That his records be corrected to show that he retired in the rank of first sergeant.

APPLICANT STATES:  That he was declared 100% disabled retroactive to his date of retirement and that the 2 year service obligation was nullified.  He states that his final years on active duty was served in the rank of first sergeant.  Also, he draws 100% disability plus $300.00 in military retirement pay.  In support of his application he submits promotion orders #84, issued by the Department of the Army promoting him to master sergeant.

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

The applicant retired in the pay grade of E-7 on 31 May 1973.  His military occupational specialty was 55B (Chief Ammunition Clerk).  He was awarded the Bronze Star Medal (1st OLC), the Army Commendation Medal (1st OLC), and the Vietnam Service Medal with 4 bronze service stars.

While assigned to Fort Sam Houston, Texas the applicant submitted his application for voluntary retirement on 26 June 1972.  Letter Orders #3-288, issued by Headquarters, Fort Sam Houston, Texas dated 23 March 1973 placed the applicant on the retired list effective 31 May 1973.

Promotion Orders #84, issued by the Department of the Army, dated 1 May 1973 promoted the applicant to master sergeant with an effective date of 1 May 1973. 

The applicant’s separation medical examination dated 11 January 1973 cleared him for retirement.  Also, he was not referred to a medical or physical evaluation board.

Army Regulation 600-200 prescribes the policy and procedures for career management of Army personnel.  Chapter 7, paragraph 7-52, in effect at the time, provided that individuals promoted to grades E-7, E-8, and E-9 would incur a 2-year service obligation prior to non-disability or voluntary retirement.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it  recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.

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 applicant’s promotion to the pay grade of E-8 occurred after his approved retirement.  Regulatory guidance, in effect at the time, stipulated that individuals promoted to grade E-7, E-8, and E-9 would incur a 2-year service obligation prior to non-disability or voluntary retirement.  The applicant had the option to retire or extend his service obligation to accept his promotion.  The Board notes that the applicant chose to retire.

2.  The applicant’s retired pay grade of E-7 is correct.

3.  The board notes that the applicant was not pending a medical or physical evaluation board.  In the absence of evidence to the contrary, it is reasonable to presume that the applicant was fit for retention in the Army at the time of his separation.  Also, his separation medical examination qualified him for retirement.

4.  The fact the Veterans Administration, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish an error or injustice for the Department of the Army.

5.  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

___JH___  __SLP___  __HBO__  DENY APPLICATION

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

INDEX

CASE ID	AR2000049101	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.