MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 October 2001
	DOCKET NUMBER:   AR2001058739

	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. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		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:  In effect, that his military records be corrected to show he was placed on the Temporary Disability Retired List (TDRL) in the rank and pay grade of staff sergeant/E-6 (SSG/E-6) and that he be provided all back pay and allowances due as a result. 

APPLICANT STATES:  In effect, that a grade determination to determine the highest grade in which he satisfactorily served on active duty was not accomplished at the time he was placed on the TDRL.  He claims this grade determination should have happened given he twice attained the rank of
SSG/E-6 during his active duty tenure and had served in that grade for a total of five years.  In support of his application, he submits copies of the following documents:  TDRL retirement order; Record of Proceedings Under Article 15, UCMJ (DA Form 2627); Physical Evaluation Board (PEB) Proceedings 
(DA Form 199); and two separate SSG promotion orders.

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

He continuously served on active duty from 28 December 1981 until 22 October 1996, at which time he was honorably separated by reason of temporary disability and placed on the TDRL.  The order authorizing his placement on the TDRL confirms that he held the rank and pay grade of sergeant/E-5 (SGT/E-5) on that date and that he would be placed on the TDRL in that rank and pay grade. 

The available records confirm that the highest rank the applicant attained while serving on active duty was SSG/E-6.  He was initially promoted to that rank on 
1 May 1989 and was reduced to the rank and pay grade of SGT/E-5 on 20 August 1990.  This reduction date is confirmed by date of rank entries in the record; however, the specific facts and circumstances pertaining to reason for his first reduction are not on file. 

On 1 November 1992, the applicant was again promoted to SSG/E-6 and on 
16 April 1996, he was again reduced to SGT/E-5.  This reduction was the result of his acceptance of NJP on 16 April 1996, for fraternizing with a SGT/E-5.  The available record contain no evidence of acts of valor, significant achievement, or service warranting special recognition performed by the applicant during either of the periods he held the rank and pay grade of SSG/E-6. 

On 25 September 1996, a Physical Evaluation Board (PEB) convened at Walter Reed Army Medical Center, Washington, D.C., to evaluate the applicant’s chronic major depression and asthma medical condition.  The PEB found the applicant physically unfit for further service and recommended a combined disability rating of 40% and that the applicant be placed on the TDRL and the applicant concurred with the PEB recommendations. 

The US Army Physical Disability Agency approved the PEB’s findings and recommendations and on 22 October 1996, the applicant was released from active duty and placed on the TDRL, in the rank of sergeant/E-5 (SGT/E-5), after completing a total of 14 years, 9 months, and 24 days of active Federal service.

On 24 April 2001, the applicant’s medical condition was reevaluated by a PEB and it determined his condition had stabilized for rating purposes.  The PEB recommended that he be removed from the TDRL with a 10% disability rating and that he be separated with severance pay.  The applicant concurred with the PEB recommendation and the US Army Physical Disability Agency approved the PEB’s findings and recommendations.  Accordingly, on 4 May 2001, he was honorably discharged, in the rank and pay grade of SGT/E-5, by reason of physical disability with severance pay.

Title 10, U.S. Code, section 1372(3) governs the grade upon retirement of any member retired for physical disability.  This law provides, pertinently, that a member who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the highest temporary grade or rank in which he served satisfactorily as determined by the Secretary of the armed force from which he is retired.

Army Regulation 635-5 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB), the board tasked by the Secretary of the Army to conduct grade determinations.  Chapter 1, paragraph 5, states, in pertinent part, the AGDRB will review cases and determine the highest grade in which a soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or separation for physical disability.  Paragraph 7 (Unsatisfactory Service) states, in pertinent part, that generally service will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, or caused by NJP.  

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 file is absent a formal grade determination made by the AGDRB prior to the applicant’s release from active duty and placement on the TDRL.  In lieu of a formal grade determination rendered by the AGDRB, this Board evaluated his record to render the satisfactory service determination required by law and regulation. 

2.  By regulation, in making a satisfactory service determination, generally service will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, or caused by NJP. 

3.  In this case, the evidence of record confirms the applicant was twice reduced from the rank and pay grade of SSG/E-6 for cause and that his service as a SSG/E-6 was undistinguished.  Therefore, the Board finds that his service as a SSG/E-6 was not satisfactory and that the highest rank and pay grade in which he satisfactorily served was SGT/E-5.  Finally, the Board concludes that SGT/E-5 was the proper grade assignment on the TDRL and as a result relief is not warranted in this case. 

4.  In view of the foregoing, there is no basis for grating 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

__CLA__  __AAO__  __HBO __  DENY APPLICATION

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

INDEX

CASE ID	AR2001058739	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/30	
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.