PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2001062149

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 her retired pay grade E-8 be corrected to E-9.   

3.  The applicant states, in effect, that she was selected for promotion to pay grade E-9 by the 1998 Active Guard and Reserve Board and should be allowed to retire in that pay grade.  In support of her application, she submits the following documents: separation document (DD Form 214); retirement orders; 
Physical Evaluation Board (PEB) Proceeding (DA Form 1999):Memorandum for 1998 United States Army Reserve Active Guard/Reserve (AGR) Master Sergeant/ Sergeant Major Promotion Board; two letters of congratulation for promotion to SGM/E-9;  

4.  The applicant’s military records show that 2 June 2000, the applicant was honorably retired from the Army with a disability rating of 30 percent, after completing 20 years, 4 months, and 29 days of active military service. 

5.  The Armed Forces of the United States Report of Transfer or Discharge 
(DD Form 214), issued to and signed by the applicant on the date of her separation, confirms that at the time of his separation she held the rank of master sergeant/E-8 (MSG/E-8).  

6.  The DD Form 214 also shows that during his active duty tenure he earned the following awards and decorations: Meritorious Service Medal (2nd Award); Army Commendation Medal (3rd Award); Army Achievement Medal (2nd Award); Army Reserve Components Achievement Medal (2nd Award); Humanitarian Service Medal (2nd Award); Good Conduct Medal (5th Award); National Defense Service Medal; Armed Forces Reserve Medal (2nd Award).  

7.  The applicant was recommended and selected for the promotion to the pay grade of E-9 by the 1998 United States Army Reserve Active Guard/Reserve (AGR) Master Sergeant/ Sergeant Major Promotion Board.

8.  On 17 September 1999, the applicant was evaluated by a PEB that convened at Fort Lewis, Washington.  This PEB determined that she was physically unfit for duty and assigned her a combined disability rating of 30 percent.

9.  Orders Number C-02-700250, dated 11 February 2000, issued by US Army Reserve Personnel Command (ARPERSCOM), authorized the applicant’s REFRAD due to disability retirement on 2 June 2000. Accordingly, on 2 June 2000, she was separated, under the provisions of Title 10 of the United Sates Code, section 1201, by reason of physical disability, and placement on the Retired List on 3 June 2000 in retired grade of MSG/E-8.

10.  In the processing of this case an advisory opinion was obtained from the Director, Full Time Support Management Directorate, ARPERSCOM.  It opined that the applicant was selected for promotion to pay grade E-9 but entered into  medical channels before she was promoted.  In addition, orders were never published promoting her to pay grade E-9 and she was ineligible to reenlist due to failure to meet medical retention standards.  Finally, ARPERSCOM concluded that the applicant did not meet the criteria for promotion under special circumstances and recommended that the applicant’s request to be placed on the Retired List in pay grade E-9 be denied.

11.  On 11 April 2002, the applicant was forwarded a copy of the ARPERSCOM advisory opinion for comment/rebuttal and fail to respond.

12.  Army Regulation 635-5 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB).  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.

13.  Title 10, U.S. Code, section 1372(3) governs the grade upon retirement of members of the armed forces who retire for physical disability.  This law provides, pertinently, that a member who is retired for physical disability under section 1201 or 1204 is entitled to the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he retired and was found to exist as a result of a physical examination.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that her military records be corrected to show that she was placed on the Retired List in pay grade E-9 finds this claim has merit.  The evidence of record confirms that she was on a valid promotion standing list prior to her disability processing.  Notwithstanding the advisory opinion by ARPERSCOM, the Board finds sufficient reason to conclude that he should have been placed on these lists in the rank and pay grade of SGM/E-9.

2.  The evidence or record shows that the applicant was on a promotion standing list to the rank of SGM/E-9 by a properly constituted Department of the Army 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.

5.  Given her promotion list status, the Board presumes the applicant would have been promoted to SGM at some point prior to her normal retirement had her service not been cut short because of his physical disability.  Thus, in the interest of justice and equity, the Board finds her record should be corrected to show she was placed on the Retired List as a SGM/E-9, and that she be provided all back pay and allowances due as a result.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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 SGM/E-9 on 3 June 2000, the date he was placed on  the Retired List by reason of permanent disability.

BOARD VOTE:  

_RVO___  ___JPI__  __PM____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2001062149	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.