PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR2000040278

	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. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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 rank and pay grade be changed from Staff Sergeant/E-6 (SSG/E-6) to Sergeant First Class/E-7 
(SFC/E-7).

3.  The applicant states, in effect, that he met all the requirements for and was in fact selected for promotion to SFC/E-7, by a Department of the Army (DA) promotion selection board, prior to his being placed on the Temporary Disability Retired List (TDRL), effective 30 November 1970.  He claims that when he went on the TDRL he was advised that his promotion would follow but this never happened.   

4.  The applicant’s military records show that on 30 November 1970 he was released from active duty (REFRAD), by reason of temporary disability, and that on the following day he was placed on the TDRL in the rank and pay grade of SSG/E-6.

5.  The evidence or record includes a letter, dated 14 July 1970, issued by the commander of the Fitzsimons General Hospital, Denver Colorado.  The subject of this letter was “Patient E-7 Promotion Standing List” and it confirms that on that date the applicant was on the promotion standing list, in military occupational specialty 13B (Field Artillery), with 725.5 points.  

6.  On 14 October 1970, a letter was published by the commander of the Medical Service Company, Fitzsimons General Hospital, Denver Colorado.  The subject of this letter was “Announcement of Selection for Promotion.”  This letter shows that the applicant had been selected for promotion to SFC/E-7 by a DA promotion selection board and that he was assigned a sequence number of 1430.  

7.  On 23 November 1970, DA Special Order Number 227 was published by the Office of the Adjutant General.  This order directed the applicant’s temporary disability retirement and that he be placed on the TDRL, in the rank and pay grade of SSG/E-6, effective 1 December 1970.

8.  On 18 July 1975, DA Letter Order Number 07-238, issued by the United States Army Military Personnel Center (MILPERCEN), in effect, removed the applicant from the TDRL and placed him on the Permanent Disability Retired List (PDRL), effective 1 August 1975.  This order awarded the applicant a disability rating of 60 percent and indicated that he would be retired in his current grade of rank, which they listed as SSG/E-6.

9.  Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded 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 the grade equivalent to the temporary or permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  This law applies both at the time a member is placed on either the TDRL or the PDRL.

CONCLUSIONS:

1.  Notwithstanding the actions taken by the Army, which placed the applicant on both the TDRL and PDRL as a SSG/E-6, the Board finds sufficient reason to conclude that the applicant should have been placed on both lists as a SFC/E-7.

2.  The evidence or record shows that DA selected the applicant for promotion to SFC/E-7 and assigned him a sequence number for promotion in October 1970, more than a month prior to his being placed on the TDRL on 1 December 1970.

3.  By law, the applicant was entitled to be placed on the TDRL, and subsequently on the PDRL, in the grade to which he would have been promoted had it not been for the physical disability for which he was retired.  Therefore, the Board finds, in the interest of justice and equity, that his record should be corrected to reflect that he was placed on the TDRL and PDRL in the rank and pay grade of SFC/E-7.  

4.  Further, the Board concludes that it would also be appropriate to provide the applicant all back pay and allowances due as a result of this corrective action identified in the preceding paragraph. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  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 1 December 1970, the date he was placed on the TDRL, and on 
1 August 1975, the date he was placed on the PDRL.

2.  That the individual concerned be provided all back pay and allowances due as a result the corrective action taken in the preceding paragraph. 

BOARD VOTE:  

___lds___  ___rvo __  __be____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR2000040278	
SUFFIX		
RECON		
DATE BOARDED	2000/10/17	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1970/11/30	
DISCHARGE AUTHORITY	AR 635-40 C4	
DISCHARGE REASON	TDRL	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.