PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 October 2002
	DOCKET NUMBER:   AR2002073229

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 retired grade be changed from 
staff sergeant/E-6 (SSG/E-6) to sergeant first class/E-7 (SFC/E-E-7).  

3.  The applicant states, in effect, that he was informed by Brooke Army Medical Center (BAMC) personnel that he was number 28 on the SFC/E-7 promotion list and that he would be able to retire as an SFC/E-7.  He checked this information with the staff of the medical board and it was confirmed.  

4.  The applicant’s military records show that he served on active duty in the Regular Army for 18 years, 10 months, and 18 days until 15 September 2001, at which time he was released from active duty (REFRAD), for the purpose of being placed on the Temporary Disability Retied List (TDRL).  

5.  The record also confirms that the applicant was selected for promotion to SFC/E-7 by the Calendar Year 2001 Department of the Army (DA) SFC/E-7 Promotion Selection Board, and that he was placed on the promotion list in military occupational specialty (MOS) 63B with a promotion sequence number of 28.  

6.  On 16 September 2001, the applicant was placed on the TDRL, in the rank and pay grade of SSG/E-6, as authorized in Orders Number 198-0111, dated 
17 July 2001, issued by Headquarters, US Army Medical Department Center and School and Fort Sam Houston, Fort Sam Houston, Texas. 

7.  In connection with the processing of this case, an advisory opinion was requested of and received from the Deputy Commander, U.S. Army Physical Disability Agency (USAPDA), Washington DC.  In effect, the Deputy Commander, USAPDA, recommended that the Total Army Personnel Command (PERSCOM) correct the applicant’s orders showing that he was authorized the retired rank and pay grade of SFC/E-7.  It further indicated that by law, members who are retired by reason of physical disability are placed on the Retired List in the rank and pay grade they would have obtained had it not been for the disability.  In this case, the applicant was selected for promotion to SFC/E-7 and placed on a DA Promotion Standing List prior to his placement on the TDRL.  

8.  The USAPDA advisory opinion also pointed out that it had authorized personnel officials to assign the applicant the retired rank and pay grade of SFC/E-7 based on the law.  However, subsequent to the applicant’s retirement, it was discovered that this was not accomplished and the applicant was instead authorized a retired rank and pay grade of SSG/E-6.  The USAPDA authorization remains unchanged, and it is recommended that PERSCOM publish the necessary correction to the applicant’s retirement orders that would allow his placement on the TDRL in the rank and pay grade of SFC/E-7.  

9.  On 9 September 2002, the applicant was provided a copy of the USAPDA advisory opinion in order to have the opportunity to respond.  On 17 September 2002, he provided his concurrence with the advisory opinion.  

10.  Title 10 of the United States Code, section 1202 provides the legal authority for placing members on active duty for more than 30 days on the TDRL.  It states, in effect, that upon a determination by the Secretary concerned a member who is determined to be unfit to perform the duties of their office, grade, rank, or rating because of a temporary physical disability incurred while on active duty may be placed on the TDRL and receive retired pay. 

11.  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. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he should have been placed on the Retired List in the rank and pay grade of SFC/E-7, and it finds this claim has merit.  

2.  The evidence of record shows that the applicant was on a valid DA Promotion Standing List to the rank and pay grade of SFC/E-7 prior to being placed on the TDRL, as a result of his having been selected for promotion by a properly constituted DA Promotion Selection Board prior to his disability processing.  Further, the USAPDA advisory opinion confirms that it authorized the applicant’s placement on the Retired List as a SFC/E-7.  

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 established promotion board selection process are not denied those advancements because their careers are cut short by physical disability.

4.  Given his promotion list status, the Board presumes that the applicant would have been promoted to SFC/E-7 had his service not been cut short because of his physical disability.  Thus, in the interest of justice and equity, the Board finds his record should be corrected to show he was placed on the TDRL as a 
SFC/E-7, and that he be provided all back pay and allowances due as a result. 

5.  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 SFC/E-7 on 16 September 2001, the date he was placed on the TDRL; and by providing him all back pay and allowances due as a result.  

BOARD VOTE:  

__RVO__  __MKP  _  __AAO __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.  _
		          CHAIRPERSON

INDEX

CASE ID	AR2002073229	
SUFFIX		
RECON		
DATE BOARDED	2002/10/01	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2001/09/16	
DISCHARGE AUTHORITY	AR 635-40 	
DISCHARGE REASON	Disability TDRL	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.