PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  8 October 2002
	DOCKET NUMBER:  AR2001065521

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Melvin H. Meyer		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 that his rank of Sergeant First Class (SFC) and pay grade of E-7 be restored to his original date of rank (DOR) of 17 February 1989.

3.  The applicant states that he accepted a voluntary reduction in rank under non-adverse administrative purposes and believes that his rank should have been restored prior to his discharge under medical conditions.  In support of his application, he submits several documents from his military personnel file.

4.  The applicant’s military records show he enlisted in the Connecticut Army National Guard (CTARNG), with prior military service, on 5 November 1976, 
as a military policeman.  He was promoted to Staff Sergeant (SSG) in pay grade E-6 on 10 February 1981.  He was promoted to SFC/E-7 on 17 February 1989.

5.  On 24 November 1989, Orders Number 223-1, issued by the Military Department of the State of Connecticut, ordered the applicant to Full Time National Guard Duty (FTNGD) in the Army Guard/Reserve (AGR), effective 21 November 1989, for a period of 3 years.  He was assigned as a Readiness NCO, in the pay grade of E-7, and was assigned as NBC Operations/Staff NCO, in MOS 54B40, with an authorized grade of E-7.

6.  On 20 April 1992, Orders Number 14-1, issued by Troop Command, State Area Command (STARC) CTARNG, voluntarily reduced the applicant to 
SSG/E-6 with an effective date and DOR of 30 April 1992.  On 22 April 1992, Orders 15-1, issued, by the same command, amended Orders Number 14-1, dated 20 April 1992, to show his DOR to SSG as 10 February 1981.

7.  On 15 May 1992, Orders Number 94-11, issued by the Military Department of the State of Connecticut ordered the applicant to FTNGD in the AGR, for a period of 5 years.  He was assigned to Headquarters and Headquarters Detachment, 192nd Engineer, Westbrook, CT, as the NBC Operations/Staff NCO, in the pay grade of E-6, and was assigned in MOS 54B30, with an authorized grade of E-6.

8.  On 22 May 1992, Orders Number 99-41, issued by the Military Department of the State of Connecticut amended Orders Number 223-1, dated 24 November 1989, to show that he was assigned to serve as an NBC Operations/Staff NCO, in the pay grade of E-6, and assigned in a military position as NBC Operations/Staff NCO, in DMOS 54B30, with an authorized grade of E-6.

9.  On 18 March 1994, the CTARNG notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s age 60 (20-Year Letter).

10.  The applicant provided a copy of his DA Form 3349, dated 22 July 1996, which shows that he was issued a permanent physical profile of 113111 with assignment limitations of no running.  It also stated that he had a medical condition of status/post (S/P) high tibial (inner and large bone of the leg below the knee) osteotomy (surgical cutting of the bone) left knee.

11.  On 1 May 1997, Orders Number 082-028 were published ordering the applicant to FTNGD with assignment to Detachment 3, HHC, 27th Infantry Brigade, Ansonia, CT effective 1 April 1997.  He was assigned to serve as the Readiness NCO and assigned as platoon sergeant, in DMOS 54B40, with an authorized grade of E-7.

12.  The applicant appeared before a Medical Evaluation Board (MEB) on 30 April 1998, and was diagnosed with bicompartmental (two sides) osteoarthritis (both knees) in left and right knees, moderate to severe.  The MEB stated that the applicant did not meet retention standards of Army Regulation 40-501, 
chapter 3-14c.  The applicant’s condition was service aggravated, incurred while entitled to base pay, and did not exist prior to service (EPTS).  The findings and recommendations were approved and the applicant was referred to a Physical Evaluation Board (PEB).  That portion of the MEB form that reflects the applicant’s acknowledgement and concurrence or non-concurrence is not in the available records.

13.  On 1 June 1998, the applicant’s case was considered by an informal PEB which convened at Walter Reed Army Medical Center (WRAMC), which included a voting member of the Reserve Components.  The PEB considered the applicant’s condition of bicompartmental osteoarthritis in left and right knees, moderate to severe.  The PEB concluded that the applicant’s medical condition prevented satisfactory performance of duty in his grade and primary military occupational specialty (PMOS).  The PEB found the applicant unfit and recommended a combined rating of 20 percent with severance pay.  The PEB also stated that ratings of less than 30 percent for soldiers with less than 
20 years retirement service require separation with severance pay in lieu of retirement.  The PEB further stated that it appeared that the applicant might qualify for retired pay for Non-Regular Service.  The applicant had the option of accepting disability severance pay and forfeiting his Reserve retirement or, he 
could be placed in an inactive Reserve status and receive Reserve Retired pay at the age of 60.  The applicant had earlier requested continuance of active duty under the Army National Guard (ARNG) AGR Program.  That portion of the PEB form that reflects the applicant’s concurrence or non-concurrence with election of options is not in the available record.

14.  On 21 December 1998, the applicant was honorably discharged from the CTARNG, under the provisions of Army Regulation 635-40, paragraph 4-24b (3), for physical disability with severance pay and under the provisions of National Guard Regulation 600-200, paragraph 1-26(i) and j(1), in the rank of SSG and pay grade of E-6.

15.  The applicant provided a copy of his Chronological Statement of Retirement Points, dated 29 June 2000, which shows that he had completed 25 years of qualifying service for retirement purposes.  It also stated that his highest grade held was E-6/SSG.

16.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), prescribes the policy and procedures for granting retired pay benefits at age 60, for the Army National Guard and Army Reserve.  Paragraph 2-11 of this regulation covers computation of retired pay and paragraph 2-11c requires that each retirement applicant’s record will be screened to determine the highest grade held during his or her military service.  

17.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted soldiers.  Chapter 6,
paragraph 44(f) provides for voluntary reductions.  It states that to obtain a benefit or personal preference, soldiers may volunteer for reduction to the lower rank.  The promotion authority may then administratively reduce the soldier without board action.  These soldiers are not subsequently entitled to an adjustment for time served in a higher rank if they accept promotion back to their formally held rank.  

18.  The same regulation, appendix A, paragraph 1-26 provides for the separation of personnel from the State ARNG and/or Reserve of the Army.  Subparagraph 1-26j(1) pertains to soldiers medically unfit for retention in accordance with Army Regulation 40-501, chapter 3.  It states, in pertinent part, that commanders, who suspect that a soldier may not be medically qualified for retention, will direct the soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the soldier’s discharge.

19.  Section IV of the same regulation pertains to promotion to SGT through SGM.  Paragraph 11-27 states that to be eligible for consideration, selection, and promotion, an individual must be in a promotable status, participating satisfactorily in the active ARNG in the next lower grade, meet time in service and time in grade requirements, and be qualified in the Career Progression MOS 

(CPMOS), promotion MOS, or a feeder MOS for the position into which assigned and promoted unless another standard is authorized.  It also states that individuals are considered physically qualified in their MOS for promotion purposes when they have been found qualified by a State Medical Duty Review Board (MDRB), MEB, or PEB, and will retain promotion status.  

20.  Paragraph 3-14c, of the same regulation states that the medical condition of osteoarthritis, with severe symptoms associated with impairment of function, supported by x-ray evidence and documented history of recurrent incapacity for prolonged period, is a cause for referral to a MEB.

21.  Title 10, United States Code (USC), chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

22.  Title 10, USC, Chapter 369, provides requirements for retired grade.  
Section 3963 provides for the highest grade held satisfactorily; Reserve enlisted members reduced in grade not as a result of the member’s misconduct.  It states that Reserve members under Section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which, the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army.  This section applies to Reserve enlisted member who (1) at the time of retirement is serving on active duty (or in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard); and (2) was previously administratively reduced in rank not as a result of the member’s own misconduct, as determined by the Secretary of the Army.  

23.  Title 10, USC, section 1212, described the computation of disability severance pay and, by operation of law, advances individuals to the highest temporary grade in which they satisfactorily served.  Section 1212(a)(B) states, in pertinent part, that "upon separation from the armed forces a member is entitled to disability separation severance pay computed by multiplying his years of 
service, but not more than 12, computed by his years of service, twice the amount of monthly basis pay to which he would be entitled if serving in any temporary grade or the highest grade held in which he served satisfactorily as determined by the Secretary of military department having jurisdiction over the armed force from which he is separated."

24.  Section 3991 of Title 10, USC, provides for the computation of retired pay by the use of the most favorable formula.  It states that if a person would otherwise be entitled to retired pay computed under more than one formula, then he is entitled to be paid under the applicable formula that is most favorable to him.

CONCLUSIONS:

1.  The evidence of record shows that the applicant was promoted to the rank of SFC/E-7 on 17 February 1989, and volunteered for FTNGD in the CTARNG effective 21 November 1989.  He was assigned as a Readiness NCO, in the pay grade of E-7, and was slotted on the MTOE as NBC NCO, in MOS 54B40, with an authorized grade of E-7.

2.  Orders 14-1 were published on 20 April 1992, reducing the applicant to SSG/E-6 with an effective date and DOR of 30 April 1992.  On 22 April 1992, Orders 15-1 were published amending Orders 14-1, dated 20 April 1992, to 
show his DOR to SSG as 10 April 1981.

3.  The PEB found the applicant unfit and recommended a combined rating 
of 20 percent with severance pay.  The PEB stated that a rating of less than 
30 percent for soldiers with less than 20 years retirement service required separation with severance pay in lieu of retirement.  The applicant was qualified for retired pay for Non-Regular service based on his 25 years of qualifying service.

4.  The applicant was honorably discharged from the CTARNG on 21 December 1998, under the provisions of Army Regulation 635-40, paragraph 4-24b(3) for physical disability with severance pay and under the provisions of National Guard Regulation 600-200, paragraph 1-26 (i) and j(1), in the pay grade of E-6.

5.  The Board notes that the applicant had previously served successfully as an SFC/E7 from 17 February 1989 to 30 April 1992, and was voluntarily reduced by the Troop Command, STARC (CTARNG).  The Board also notes that in accordance with Title 10, USC, section 1212(a)(B) the applicant is entitled to disability severance pay computed by multiplying his years of service, but not more than 12, computed by his years of service, twice the amount of monthly basis pay to which he would be entitled at the highest grade in which he served satisfactorily. 

6.  Therefore, the Board recommends that the applicant's records be corrected to show the highest grade held of SFC/E-7 and that his disability severance pay be recomputed at the grade of E-7 with back pay and allowance effective 21 December 1998, the date of his separation.

7.  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 for the individual concerned be corrected:

a.  by showing his highest grade held as SFC/E-7; and

b.  by showing that his disability severance pay was computed at the grade of E-7 with back pay and allowances effective 21 December 1998.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jp___  ___ja____  ___mm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR2001065521	
SUFFIX		
RECON		
DATE BOARDED	20021008	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19981221	
DISCHARGE AUTHORITY	AR NG 600-200, PARA 1-26/AR635-40,4-24B(3)	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  319		
2.		
3.		
4.		
5.		
6.