PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 September 2002
	DOCKET NUMBER:  AR2002071331

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. Donald P. Hupman		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 his pay grade of E-4 on retirement be corrected to the pay grade of E-5.

3.  The applicant states, in effect, that he had been approved for promotion to E-5 prior to his retirement by reason of physical disability and he should have been promoted.

4.  The applicant’s military records show that he was serving on active duty in the pay grade of E-4 when, on 1 September 1985, he was recommended and approved for promotion to the pay grade of E-5.

5.  On 26 December 1985, a Medical Evaluation Board found the applicant to have medical defects that warranted referral to a Physical Evaluation Board (PEB).  His PEB met on 21 January 1986 and determined that he was physically unfit for further military service with a combined rating of 30 percent.  It was determined that he should be permanently retired from the service.  The PEB findings and recommendations were approved on 31 March 1986.

6.  On 5 May 1986, orders were issued which retired the applicant effective 2 June 1986 and placed him on the Retired List effective 3 June 1986 by reason of physical disability rated at 30 percent.  His retired grade is shown as E-4.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he was separated in the pay grade of E-4 effective 2 June 1986 under the authority of Army Regulation 635-40 by reason of permanent physical disability.

8.  Title 10, U.S. Code (USC), section 1372(3) governs the grade upon retirement of members of the Armed Forces who retire for physical disability.  This law provides 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.

9.  Army Regulation 15-80 establishes the policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB).  It states, in pertinent part, that the AGDRB will review cases and determine the highest grade in which a soldier has served satisfactorily for purposes of computation of retired pay for separation by reason of physical disability.  There is no evidence of record that the AGDRB ever reviewed the applicant's case for a grade determination.

10.  Army Regulation 635-40, in effect at the time, provided that the grade on retirement would be governed by Title 10, USC, sections 1372 and 1373.  It also stated that Headquarters, Department of the Army would make the final grade decision.
CONCLUSIONS:

1.  The applicant was recommended for and approved for promotion to the pay grade of E-5 prior to the determination of the PEB that he was physically unfit for further military service.

2.  Based on the evidence of record it appears that the applicant was denied the appropriate review by the AGDRB, which most likely would have resulted in a determination that he was entitled to retirement in the pay grade of E-5.

3.  Because of the error in the applicant's separation process, the Board believes that he is also entitled to any back pay and allowances had he been placed on the Retired List in the pay grade of E-5 on 3 June 1986.

4.  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 for the individual concerned be corrected by:

	a.  showing that he was placed on the Retired List in the pay grade of E-5 on 3 June 1986; and

	b.  paying any back pay and allowances that might be due had he been placed on the Retired List in the pay grade of E-5 on 3 June 1986.

BOARD VOTE:  

__ao___  ___kl___  ___dh____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2002071331	
SUFFIX		
RECON		
DATE BOARDED	20020924	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.