MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 August 2002
	DOCKET NUMBER:   AR2002072515

	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. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Donald P. Hupman, Jr.		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 master sergeant/E-8 (MSG/E-8) effective 1 October 1983.

APPLICANT STATES:  In effect, that he should have been promoted to MSG/E-8 prior to his being placed on the Temporary Disability Retired List (TDRL) or at the time he retired by reason of permanent disability in 1988.  He states that he was informed at the out processing center at Fort Meade, Maryland, that even if he had been selected for promotion, he was not entitled to a promotion because he was on the TDRL.  He further states that he requested to be promoted and recalled to active duty at his final medical board in 1988.  However, he was informed by the board president that he would be retired by reason of permanent disability. 

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

On 15 August 1983, the applicant was honorably released from active duty (REFRAD) by reason of temporary physical disability and on the following day  he was placed on the TDRL.  On 22 February 1988, he was removed from the TDRL and placed on the Retired List by reason of permanent physical disability. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that sergeant first class/E-7 (SFC/E-7) was the highest rank to which he was promoted and held 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 MSG/E-8 prior to his REFRAD.  

On 3 June 1983, 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 40 percent and that he be permanently retired from the service by reason of physical disability.  The applicant did not concur with the PEB findings and recommendations and requested a formal hearing of his case.

On 11 July 1983, a formal PEB was convened.  The PEB determined that the applicant was physically unfit for further service, recommended a combined disability rating of 40%, and recommended that the applicant be placed on the TDRL.  The applicant concurred with the PEB findings and recommendations.

On 13 January 1988, the applicant’s medical condition was reevaluated by a formal PEB.  It determined that the applicant was unfit for service and recommended a 60% disability rating.  The PEB recommended that he be permanently retired from the service.  

On 8 February 1998, Orders Number D25-11 were published by the United States Army Military Personnel Center (MILPERCEN) which directed the applicant’s removal from the TDRL on 22 February 1988 and his permanent retirement and placement on the Retired List, by reason of physical disability, on the following day. 

A Data for Retired Pay (DA Form 3713) dated 8 February 1988, which was prepared on the applicant during his retirement processing, contains the entry SFC/E-7 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 23 February 1988.

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that on 15 August 1983 he was REFRAD under the provisions of paragraph 4-24e(1) by reason of temporary physical disability.  This document confirms that he held the rank and pay grade of SFC/E-7 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 MSG/E-8 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 MSG/E-8 by the 1982 and 1983 DA promotion selection boards.

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 MSG/E-8 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 and held while serving on active duty was SFC/E-7.  It also shows that while he was considered for promotion to SFC/E-7 by the 1982 and 1983 DA promotion selection boards, he was not selected for promotion.  Thus, the Board concludes there is no evidence to show that the applicant was ever placed on a valid DA promotion list to MSG/E-8 prior to incurring the medical condition that resulted in his disability retirement. 

3.  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.

4.  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

___LLS__  __PM___  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072515	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/06	
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.