MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 May 2003
	DOCKET NUMBER:   AR2003083799

	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. Thomas B. Redfern		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. John T. Meixell		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 and advanced on the Retired List to the rank and pay grade of sergeant/E-5 (SGT/E-5).

APPLICANT STATES:  In effect, that subsequent to his injury, his promotion orders to SGT/E-5 were never published.

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

On 28 September 1973, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement, by reason of a permanent physical disability.  At the time of his separation, he had completed a total of 1 year, 
6 months, and 6 days of active military service. 

The applicant’s Enlisted Qualification Record (DA Form 20) confirms, in Item 33 (Appointments and Reductions), that he was promoted to specialist four/E-4 (SP4/E-4) on 11 August 1972, 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 recommended, selected, or promoted to SGT/E-5 by the proper authority.  

On 21 August 1973, 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 that he receive a physical disability rating of 100 percent and that he be permanently retired from the service by reason of physical disability.  On 22 August 1973, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing of his case.  

On 20 September 1973, Orders Number D-322 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 28 September 1973.  

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 SP4/E-4 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 in that rank and pay grade on 29 September 1973.

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that on 28 September 1973, he was REFRAD under the provisions of Title 10 USC section 1201, by reason of physical disability-permanent, and that he held the rank and pay grade of 
SP4/E-4 on that date. 
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 his promotion orders to pay grade E-5 were not published subsequent to the incurring 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 SP4/E-4.  It contains no indication that the applicant was ever recommended, selected, or promoted to the rank and pay grade of SGT/E-5 by the proper promotion authority prior to incurring the injury that resulted in his disability retirement.  

3.  In addition, the applicant fails to provide independent evidence to show that he was ever recommended for promotion and/or placed on a valid promotion standing list by the proper authority prior to his disability processing.  Lacking any evidence to support the applicant’s contention, the Board concludes that he was appropriately placed on the Retired List in the rank and pay grade of SP4/E-4 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

__jm____  ___lds___  __tbr____  DENY APPLICATION

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

INDEX

CASE ID	AR2003083799	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/05/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 306	129.0400	
2.		
3.		
4.		
5.		
6.