MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          29 August 2000
	DOCKET NUMBER:  AR1999033848 

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		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 his records be corrected to show that he was retired as a sergeant in pay grade E-5 and that he be granted retroactive pay. 

APPLICANT STATES:  In effect, that he was a sergeant when he was reduced to a private, pay grade E-1 in conjunction with some court-martial charges that were dismissed as a result of an appeal.  However, his rank was restored to specialist, pay grade E-4 and not to sergeant pay grade E-5.  

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

That on 17 September 1974 he enlisted in the Regular Army (RA).  On 14 March 1977, he was promoted to sergeant, pay grade E-5.  On 16 March 1978, he was honorably discharged.  On 17 March 1978, he reenlisted in the RA for 6 years, and pay grade E-5.

On 6 April 1979, he was convicted by a summary court-martial of wrongfully having in his possession some amount of marijuana on 14 March 1979.  His sentence included forfeiture of $325.00 pay, reduction from pay grade E-5 to pay grade E-4 and 30 days restriction.

On 4 January 1981, he was again promoted to sergeant pay grade E-5.  On 
24 February 1983, nonjudicial punishment (NJP) action was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for being derelict in the performance of his duties in that he negligently fell asleep while on duty as a charge of quarters.  His punishment included reduction from pay grade
E-5 to pay grade E-4 (suspended) and 20 days extra duty.

On 6 May 1983, he was convicted by a summary court-martial of wrongfully uttering to the Columbus Bank and Trust, Georgia a draft in the amount of $2,500 for payment upon the Pentagon Federal Credit Union knowing that he did not or would not have sufficient funds or credit for the payment of such a draft.  His sentence included reduction from pay grade E-4 to pay grade E-1 and to perform 2 months hard labor without confinement.

In July 1983, A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that on 7 January 1983, while he was walking in column formation a tree branch struck him in the left eye.  The eye turned red and felt like it had debris in it.  A medic flushed the eye out with water.  In March 1983, he began losing sight in the left eye and was treated at Martin Army Hospital, Fort Benning, Georgia.

On 23 August 1983, he received a Medical Evaluation Board (MEBD) that determined he had a “macular scar, O.S.” and found him medically unfit for further military service in accordance with current medical fitness standards.  He was referred to a Physical Evaluation Board (PEB).

On 9 September 1983, a PEB found that he was physically unfit for further service because of decreased vision in the left eye.  A line of duty determination indicated that the left eye injury was sustained during field duty.  He was found to have light perception only in his left eye and 20/40 vision or better in his right eye.  The PEB found him to be 30 percent disabled and it was recommended that he be placed on the Permanent Disability Retired List (PDRL).  On 
13 September 1983, the applicant concurred with the PEB’s recommendation and the approval authority approved the PEB findings and recommendation on the same date.

On 11 October 1983, the applicant was separated from active duty with an honorable discharge.  Item 4a (Grade, Rate or Rank) of his DD Form
214 indicates his rank was private and in Item 4b (Pay Grade) shows that his pay grade was E-1.  He was separated under the provisions of Army Regulation 
635-40, paragraph 4-24, (Physical Disability) with a 30 percent disability rating.  He had completed 5 years, 6 months and 25 days during the current enlistment period and he had a total of 3 years and 10 months of prior active military service.

On 11 October 1983, the applicant was placed on the PDRL in pay grade 
E-1.  On 28 October 1983, a Department of the Army Ad Hoc Review Board, in the Office of the Secretary of the Army reviewed his records to determine the highest rank in which he served satisfactorily.  The Board determined that the highest rank he successfully held while on active duty was pay grade E-4, not pay grade E-5.  His courts-martial and an NJP action reduced the level of his performance in pay grade E-5.  His retired pay grade was thus established as pay grade E-4.

On 9 November 1983, a change to his retired pay was submitted to the Defense Finance and Accounting Service to change his retired pay grade to pay grade
E-4.  Information available to the Board indicates that he is still receiving retired pay at that pay level.

Title 10, United States Code, Section 1201, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, Section 1372, further provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this Title, is entitled to among other reasons, to be retired in the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retiring.

Army Regulation 635-5 prescribes the policies and procedures for completing separation documents.  Paragraph 2-8 states, in pertinent part, that the DD Form 214 will reflect the rank and pay grade held by the service member at the time of separation.

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.  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.

2.  The Board determined that the applicant was honorably released from active duty on 11 October 1983 and he was placed on the PDRL in pay grade E-1.  On 28 October 1983, a Department of the Army Ad Hoc Review Board concluded that he was to be placed on the PDRL in pay grade E-4, because for retired pay purposes, pay grade E-4 was the highest rank in which he had satisfactorily served.

3.  The applicant’s retirement separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and he was retired at the highest rank that he had satisfactorily served.  He has provided no evidence to the contrary. 

4.  However, Items 4a and 4b of his DD Form 214 issued on 11 October 1983, should be administratively corrected to show his release pay grade and rank as specialist, pay grade E-4.

5.  The applicant has provided no probative evidence to establish a basis for retroactive pay.

6.  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.

NOTE:  Request that the Army Review Boards Agency (ARBA), Support Division, St. Louis furnish the individual concerned a DD Form 215, (Correction to DD Form 214) to show in Item 4a that his retirement rank is specialist and to show in Item 4b that his pay grade is pay grade E-4. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jdm___  __ra____  __cg_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999033848	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19831011	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.0100	
2.	136.0000	
3.		
4.		
5.		
6.