MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 June 2002
	DOCKET NUMBER:   AR2002070459

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		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 promoted to the rank and pay grade of sergeant first class/E-7 (SFC/E-7), effective 1 October 1987.

APPLICANT STATES:  In effect, in May 1987, he was told that he had been selected for promotion to SFC/E-7 and would be promoted within a few weeks.  However, in June 1987, he suffered a heart attack that resulted in his being hospitalized.  At this time, he was told he was taken off of jump status and removed from the promotion list because of his illness, and he would eventually be processed for a medical retirement.  He claims that later, when the promotion list was published in the Army Times, his name was not included in the list of those selected for promotion to SFC/E-7.  Ultimately, in February 1988, he was medically retired and placed on the Retired List in the rank and pay grade of staff sergeant/E-6 (SSG/E-6) as a result of his heart condition.  In support of his application, he submits copies of the following documents:  Medical Evaluation Board (MEB) proceedings; Data For Retired Pay (DA Form 3173); retirement orders; separation document (DD Form 214); and DA Form 2496, Subject: Zone of Consideration for Promotion to SFC/E-7.  

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

On 5 February 1988, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement, by reason of a permanent physical disability.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in Item 18 (Appointments and Reductions), that he was promoted to SSG/E-6 and that this was the highest rank he attained while serving on active duty. In addition, his Military Personnel Records Jacket (MPRJ) contains no orders or other documents that indicate he was ever selected for and placed on a valid Department of the Army (DA) promotion standing list for SFC/E-7.  

On 7 December 1987, a Physical Evaluation Board (PEB) convened to evaluate the applicant’s medical condition.  The PEB determined that the applicant was medically unfit for further service.  It recommended the applicant receive a physical disability rating of 60 percent and that he be permanently retired from the service by reason of physical disability.  On 8 December 1987, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing of his case.  

On 23 December 1987, Orders Number D249-20 were published by the United States Army Military Personnel Center (MILPERCEN), which directed the applicant’s relief from assignment and duty because of physical disability and his retirement on 5 February 1988.  

A Data for Retired Pay (DA Form 3713), dated 23 December 1987, which was prepared on the applicant during his retirement processing, contains the entry SSG/E-6 in the following items:  Item 2 (Active Duty Grade); Item 3 (Retired Grade); Item 8 (Highest Grade Attained); and Item 10 (Retired Pay).  This document also confirms that he was placed on the Retired List on 5 February 1988, after completing a total of 11 years, 2 months, and 28 days of active military service.  

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that on 5 February 1988, he was REFRAD under the provisions of paragraph 4-24e(1), by reason of physical disability-permanent, and that he held the rank and pay grade of SSG/E-6 on that date.

During the processing of this case, a member of the Board staff contacted the Promotions Branch, Total Army Personnel Command (PERSCOM), to determine if the applicant had ever been selected for promotion to SFC/E-7 and placed on a DA promotion list prior to incurring the medical condition that resulted in his disability retirement.  A PERSCOM official confirmed that the applicant was considered, but not selected for promotion to SFC/E-7 by the 1988 DA promotion selection board.  

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.

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 Board notes the applicant’s contention that he was selected for promotion to SFC/E-7 prior to incurring the medical condition that resulted in his disability retirement.  However, it finds insufficient evidence to support this claim. 

2.  The evidence of record confirms that the highest rank and pay grade the applicant attained while serving on active duty was SSG/E-6, and that while he was considered for promotion to SFC/E-7 by the 1988 DA promotion selection board, he was not selected for promotion and placed on the promotion list prior to incurring the medical condition that resulted in his disability retirement.  

3.  The record further confirms that the applicant held the rank and pay grade of SSG/E-6 on the date of his REFRAD for the purpose of retirement, and that this was the highest rank and pay grade he held while serving on active duty.  In addition, the applicant has failed to provide sufficient independent evidence to support his claim that he was selected for promotion to SFC/E-7 prior to his disability processing.  Thus, the Board concludes that he was appropriately placed on the Retired List in the rank and pay grade of SSG/E-6 in accordance with the applicable law and regulation.  

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.

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__  __EJA__  __TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070459	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/25	
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.	129.0400	
2.		
3.		
4.		
5.		
6.