MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 July 2001
	DOCKET NUMBER:   AR2001059124

	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	
	Ms. Margaret V. Thompson		Member	
	Mr. William D. Powers		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 he be advanced to the rank and pay grade of command sergeant major/E-9 (CSM/E-9) on the Retired List.

APPLICANT STATES:  In effect, that he has been retired for over 15 years and was placed on the Retired List in the pay grade E-8.  He claims to have served in E-9 positions during his service for which he was recognized with maximum evaluation reports, commendation letters, and a Meritorious Service Medal (MSM).  He also indicates he is not interested in retroactive pay but based on his service to his country in three wars, World War II, Korea, and Vietnam, he would consider it a great honor to be laid to rest at Arlington National Cemetery with military honors due a CSM/E-9.  He states, in effect, that in 1981, he was assigned to Fort Riley, Kansas where he served as both a first sergeant and as a battalion CSM.  However, shortly after his arrival he was accused of making a fraudulent claim against the Government and declined an offer to accept a Letter of Reprimand and demanded a court-martial in order to clear his name.  In addition, he states that his name was removed from the list for attendance to the sergeant major academy and from the Department of the Army (DA) E-9 promotion list pending the outcome of the court-martial.  Further, he indicates that once he was found not guilty of the charge against him by a special 
court-martial in February 1982, he was never reinstated to the promotion or sergeant major academy lists as he should have been.  Subsequently, he was reassigned to another unit at Fort Riley as the CSM but it was in the same command that initiated the court-martial.  He was then pressured to take a physical examination to determine his fitness to continue on active duty and although he was fit to continue to serve, he was offered a 70 percent disability and decided to accept it because he felt members of the chain of command were not all pleased that he had been cleared of the charge against him.  He concludes that he was wronged when his name was not returned to the promotion and the sergeant major academy lists and because he was not reassigned from the command at Fort Riley where the original court-martial charges were preferred and the Board should now right those wrongs.  

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

He served on active duty for 17 years, 5 months, and 20 days and was released from active duty (REFRAD) on 8 December 1983.  The Board staff verified through the Defense Finance and Accounting Service (DFAS), Cleveland, Ohio,  that the day following his REFRAD, the applicant was placed on the Temporary Disability Retired List (TDRL), in the rank and pay grade of first sergeant/E-8 (1SG/E-8), and that on 29 January 1985, he was permanently retired with a 
70 percent disability and placed on the Retired List as a 1SG/E-8.

The applicant’s Department of the Army 2-1 (Personnel Qualification Record) confirms, in block 18 (appointments and reductions) that the applicant was promoted to the rank and pay grade of master sergeant/E-8 on 28 July 1975 and that he was initially laterally appointed to the rank of 1SG on 10 February 1978.

Block 35 (record of assignments) of the DA Form 2-1 shows that the applicant served in a Medical Noncommissioned Officer (NCO) position that was authorized an E-9, from 1 June 1976 to 1 March 1976.  In addition, it reveals that he served in 1SG positions on several occasions between January 1978 and the date of his REFRAD.

There is no indication in the applicant’s available records, which include an Official Military Personnel File performance microfiche, which documents his service through the date of his last enlistment; and the DA Form 2-1 he provided, that shows that he was ever selected for promotion to the pay grade of E-9 or that he was ever placed on the DA E-9 promotion standing list prior to his REFRAD and placement on the Retired List or that he was removed from a promotion list based on a pending court-martial action.  The available records contain no reference to the court-martial action the applicant refers to, which would be appropriate since he was found not guilty.  

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. 

Title 10 of the United States Code, section 3964 provides the legal authority for advancement on the Retired List.  It states, in pertinent part, that retired soldiers, when their active service plus their service on the Retired List totals 30 years, are entitled to be advanced on the Retired List, to the highest grade they held and satisfactorily served on active duty as determined by the Secretary of the Army.

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.  By law, members retiring for physical disability may 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 and selected for promotion are not denied those advancements because their careers are cut short by physical disability. 

2.  However, the available evidence in this case contains no indication that the applicant was ever recommended or selected for promotion to the pay grade of E-9 by a DA promotion board or that he was placed on the E-9 promotion standing list prior to his being REFRAD.  Therefore, the Board finds no basis for promoting the applicant to the rank and pay grade of CSM/E-9.  

3.  By law, advancement on the Retired List is only authorized when a member has satisfactorily served in a higher pay grade while on active duty.  To meet this requirement, a member must have been promoted to and held a higher rank while serving on active duty.  Performing duties in a position authorized a higher pay grade alone does not satisfy this satisfactory service provision of the law.  The record gives no indication that the applicant was ever selected for, promoted to, or held and satisfactorily served a pay grade higher than E-8 during his active duty tenure and thus, the Board concludes his advancement on the Retired List would be inappropriate.  

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.
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

__JNS__  __ MVT __  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2001059124	
SUFFIX		
RECON		
DATE BOARDED	2001/07/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1983/02/08	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	TDRL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.