MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 November 2002
	DOCKET NUMBER:   AR2002077106

	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. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Hubert O. Fry, Jr.		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 military records be corrected to show that he was placed on the Temporary Disability Retired List (TDRL) in the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that he used a waiver to be promoted to 
SFC/E-7 while serving as a GS-7.  He states that he was promoted to SFC/E-7 and that he honorably held that rank and pay grade for 130 days.  He states that he was not assigned to a SFC/E-7 position because in order to remain a GS-7 he had to agree to a rank reduction.  In support of his application, he submits three Request and Authorization for TDY Travel Of DOD Personnel forms (DD Forms 1610).  

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

On 20 January 1999, the applicant was honorably separated by reason of temporary disability and placed on the TDRL.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that he was promoted to the staff sergeant/E-6 (SSG/E-6) on 17 November 1991, and that was the highest rank he attained during his military service.  In addition, his Military Personnel Records Jacket (MPRJ) contains no orders or other documents that suggest that he was promoted to SFC/E-7, or that he was ever selected for and placed on a valid Department of the Army (DA) promotion standing list for that rank and pay grade.  

Orders Number 197-01, dated 17 November 1991, issued by Department of the Army, 33rd Personnel Services Company, APO AE 09808, promoted the applicant to SSG/E-6, effective 17 November 1991.  

Orders 137-013, dated 17 May 1993, issued by State Of New Jersey, Department of Military and Veterans Affairs, authorized the applicant’s reduction from SSG/E-6 to sergeant/E-5 (SGT/E-5), effective 17 November 1991.  The reason for reduction cited in these orders was that the applicant was in a 
non-promotable status because he lacked the required National Agency Check required for promotion to SSG/E-6.  

On 7 January 1999, Orders Number D249-20, published by the United States Army Military Personnel Center (MILPERCEN), directed the applicant’s relief from assignment and duty because of physical disability, and his retirement on 20 January 1999.  These orders authorized his placement on the TDRL in the rank and pay grade of SSG/E-6 on that date, and that he would be placed on the TDRL in that rank and pay grade.

The applicant provided three TDY forms, dated in 1995, which list his rank and pay grade as SFC/E-7.  However, there are no orders, documents or forms on file in the applicant’s MPRJ that show he was ever selected for or promoted to SFC/E-7.  

Title 10, U.S. Code, section 1372(3) governs the grade upon retirement of any member retired for physical disability.  This law provides, pertinently, that a member who is retired for physical disability, or whose name is placed on the TDRL is entitled to the highest temporary grade or rank in which he served satisfactorily as determined by the Secretary of the Armed Force from which he is retired.

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 he was promoted to and honorably served in the rank and pay grade of SFC/E-7, and that he should have been placed on the TDRL in that rank and pay grade.  However, it finds insufficient evidence to support this claim.

2.  By law and regulation, members who are retired for physical disability are entitled to be placed on the TDRL in the highest temporary grade or rank in which he/she served satisfactorily.  The evidence of record confirms that highest rank and pay grade the applicant held during his military service was SSG/E-6, and had been reduced from that rank and pay grade.  The record also confirms that he was placed on the TDRL in the rank and pay grade of SSG/E-6 based on this being the highest rank and pay grade he attained and in which he served.  

3.  In the opinion of the Board, notwithstanding the TDY forms he provided, the applicant has failed to provide sufficient independent evidence to support his claim that he was promoted to and satisfactorily served in the rank and pay grade of SFC/E-7 prior to his disability processing.  Thus, the Board concludes that he was appropriately placed on the TDRL in the rank and pay grade of SSG/E-6 in accordance with the applicable law and regulation, and that there is insufficient evidence to support providing him the requested relief.  

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

_ _SAC  _  __RWA_  ___HOF__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077106	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/26	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.0400	
2.		
3.		
4.		
5.		
6.