PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            23 January 2003
	DOCKET NUMBER:   AR2002078455

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Patrick H. McGarthy, Jr.		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 grade be changed from sergeant/E-5 to staff sergeant/E-6 (SSG/E-6).  

3.  The applicant’s military records show that on 19 March 1992, he was honorably released from active duty, by reason of permanent disability, for the purpose of retirement.  

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that he was promoted to SSG/E-6, which is the highest rank and pay grade he held while on active duty, on 1 September 1983.  It also shows that he was reduced from SSG/E-6 to SGT/E-5 on 8 January 1987. 

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of a Promotion Point Worksheet (DA Form 3355), dated 28 April 1989, which confirms that he was recommended for promotion to SSG/E-6.  In addition, his Personnel Qualification Record (DA Form 2-A), dated 7 June 1991, confirms that he was on the promotion list for SSG/E-6 in military occupational specialty (MOS) 74D (Information Systems Operator), and had 697 promotion points. 

6.  In late 1991, the applicant was referred to a Physical Evaluation Board (PEB) at Walter Reed Army Medical Center (WRAMC).  The PEB evaluated the applicant’s medical condition and determined that he was physically unfit for duty, and it recommended a combined physical disability rating of 20 percent and that the applicant be permanently retired by reason of physical disability.

7.  Orders Number D46-71, dated 5 March 1992, issued by US Total Army  Personnel Command (PERSCOM), authorized the applicant’s REFRAD due to disability retirement and his placement on the Retired List the following day. Accordingly, on 19 March 1992, he was separated in the rank and pay grade of SGT/E-5, and on 20 March 1992, he was placed on the Retired List in that rank and pay grade.  

8.  Army Regulation 635-5 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB).  Chapter 1, paragraph 5, states, in pertinent part, that during separation processing, the AGDRB will review cases and determine the highest grade in which a soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or separation for physical disability.  

9.  Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded to 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 a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the Retired List; the highest grade in which he served satisfactorily; or the grade to which he would have been promoted had it not been for the physical disability.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his retired rank and pay grade should be corrected, and it finds this claim has merit.  By law, members retiring for physical disability are entitled to a grade equivalent to the highest of the following:  the grade in which he is serving on the date when his name is placed on the Retired List; the highest grade in which he served satisfactorily; or the grade to which he would have been promoted had it not been for the physical disability.  

2.  The evidence of record confirms that a grade determination was not accomplished during the applicant’s physical disability separation processing, as is required by regulation.  Further, the record confirms that the applicant was on a valid promotion standing list to SSG/E-6 prior to his disability processing.  

3.  In view of the applicant’s promotion list status, the Board presumes that he would have been promoted to SSG/E-6 at some point prior to his normal retirement had his service not been cut short because of his physical disability.  Thus, in the interest of justice and equity, the Board finds that his record should be corrected to show he was placed on the Retired List in the rank and pay grade of SSG/E-6.  Further, the Board concludes that it would be appropriate to provide him all back pay and allowances due as a result.

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 showing the rank and pay grade of the individual concerned was SSG/E-6 on 20 March 1992, the date he was placed on the Retired List by reason of permanent disability.

BOARD VOTE:  

__KAN__  __GJW  _  __PHM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2002078455	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/23	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.00	
2.		
3.		
4.		
5.		
6.