PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 January 2003
	DOCKET NUMBER:   AR2002077916

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		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, the difference in pay and allowances between the pay grade E-4 and the pay grade E-5 for her active duty service from 17 April 1997 through 5 September 1998; the retired pay she received while on the Temporary Disability Retirement List (TDRL) from 6 September 1998 through 5 September 2000; and the disability severance pay she received upon her removal from the TDRL and discharge by reason of permanent disability with severance pay on 5 September 2000.

3.  Orders Number 57-6, dated 26 February 1996, authorized the applicant’s promotion to the rank and pay grade of sergeant/E-5 (SGT/E-5), effective 
1 March 1996.  

4.  In July 1998, a Physical Evaluation Board (PEB) recommendation that the applicant be placed on the TDRL was approved.  Orders Number 201-0263, dated 20 July 1998, issued by Department of the Army (DA), XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, directed the applicant’s release from active duty (REFRAD) on 5 September 1998, by reason of physical disability-temporary; and her placement on the TDRL on 6 September 1998, in the rank and pay grade of specialist/E-4 (SPC/E-4).  

5.  On 5 September 1998, the applicant was honorably REFRAD by reason of physical disability-temporary.  The separation document (DD Form 214) issued to and authenticated by the applicant with her signature on the date of her separation confirms that she held the rank and pay grade of SPC/E-4 on that date.  

6.  Orders Number D173-2, dated 5 September 2000, issued by the United States Army Physical Disability Agency, Washington D.C., directed that the applicant be removed from the TDRL and discharged from the service on 
5 September 2000, by reason of disability-permanent with severance pay, based on a 20 percent disability rating.  

7.  The applicant provides a copy of a Defense Finance and Accounting Service (DFAS), Cleveland Form 1800/43, dated 1 February 2001, which shows that her severance pay entitlement was $22,314.60, which was the result of a computation based on her holding the rank and pay grade of SPC/E-4 with over 8 years of service.

8.  Other than the DD Form 214 and DFAS finance documents provided by the applicant, the evidence of record contains no specific facts and circumstances pertaining to the applicant being tried and convicted by summary court-martial (SCM), which resulted in her reduction from SGT/E-5 to SPC/E-4.  

9.  The applicant provides a copy of a letter from the Senior Examiner, Examination and New Trials Division, United States Army Judiciary, dated 
23 June 1999, which concerned the applicant’s Article 69(b), Uniform Code of Military Justice (UCMJ), application for relief from the summary court-martial (SCM) results that were approved by the convening authority at Fort Bragg, North Carolina, on 17 April 1997.  It stated that The Judge Advocate General (TJAG) of the Army, granted the applicant’s application for relief, and additionally set-aside the first SCM that concluded on 12 November 1996.  Included with the letter were copies of SCM Order Number 1 and SCM Order Number 2, dated 
22 June 1999, issued by DA, Washington D.C., which reflected the actions of TJAG of the Army directing that all rights, privileges, and property of which the applicant was deprived by virtue of the SCM findings and sentences that were being set-aside be restored. 

CONCLUSIONS:

1.  The Board notes applicant’s contention that she should be reimbursed all back pay and allowances due her as a result of TJAG of the Army setting aside her SCM convictions, and directing that all rights and privileges she lost as a result of be restored, and it finds this claim has merit.  

2.  The evidence of record shows that the applicant was promoted to SGT/E-5 on 1 March 1996.  As a result of a successful appeal of the SCM convictions, her rank and pay grade of SGT/E-5 was reinstated, with the original promotion effective date, by TJAG of the Army.  Thus, the Board finds that it would be appropriate to correct Items 4a (Grade, Rate, or Rank), 4b (Pay Grade), and 
12h (Effective Date of Pay Grade) of the applicant’s DD Form 214, dated 
5 September 1998, to show that as of the date of her REFRAD, she held the rank and pay grade of SGT/E-5, and that the effective date of her pay grade was 
1 March 1996.

3.  In addition, given TJAG of the Army directed that all rights, privileges, and property that the applicant was deprived of as a result of the SCM sentences be restored, the Board also finds that it would be appropriate to provide the applicant active duty pay as a SGT/E-5 from 1 March 1996 through 5 September 1996; retired pay as a SGT/E-5 for the period she was on the TDRL from 
6 September 1996 through 5 September 2000; and disability severance pay computed based on her holding the rank and pay grade of SGT/E-5 on 5 September 2000, the date of her discharge based on permanent disability.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  showing that the individual concerned was promoted to the rank and pay grade of SGT/E-5 on 1 March 1996, and that she continuously held that rank and pay grade on active duty through the date of her REFRAD on 5 September 1998, and providing her a corrected DD Form 214 that reflects this rank, pay grade, and effective date of pay grade;  

b.  showing that she was placed on the TDRL and held the rank and pay grade of SGT/E-5 while she was on the TDRL from 6 September 1998 through 
5 September 2000, the date of her discharge by reason of permanent disability;

c.  providing her any back active duty pay and allowances due as a result of her holding the rank and pay grade of SGT/E-5 for the entire period between her promotion on 1 March 1996, and her REFRAD on 5 September 1998; 

d.  providing her any back retired pay due as a result of her holding the rank and pay grade of SGT/E-5 for the entire period she was on the TDRL between 6 September 1998 through 5 September 2000; and 

e.  providing her the difference in severance pay due as a result of 
recomputing it based on her holding the rank and pay grade of SGT/E-5 vice 
SPC/E-4.  

BOARD VOTE:  

__KAK__  __MHM  _  __TLP __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Karol A. Kennedy_  __
		        CHAIRPERSON

INDEX

CASE ID	AR2002077916	
SUFFIX		
RECON		
DATE BOARDED	2003/01/28	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1998/09/05	
DISCHARGE AUTHORITY	AR 635-40 	
DISCHARGE REASON	Disability-TDRL 	
BOARD DECISION	GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  308	129.0600	
2.		
3.		
4.		
5.		
6.