MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 January 2003
	DOCKET NUMBER:   AR2002079417

	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. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yolanda Maldonado		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 retired rank and pay grade be changed to staff sergeant/E-6 (SSG/E-6).

APPLICANT STATES: In effect, that he was medically discharged in the rank and pay grade of sergeant/E-5 (SGT/E-5), but he should have been retired in the highest rank and pay grade he held, which was SSG/E-6.  He states that he is presently receiving compensation from the Department of Veterans Affairs (DVA) and this change to his retired rank and pay grade would assist him in better caring for and supporting his family. 

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

On 20 August 1993, while a member of the Army National Guard (ARNG) serving in an Active Guard Reserve (AGR) status, he was honorably released from active duty (REFRAD) for the purpose of retirement, by reason of a permanent physical disability.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that the applicant was promoted to the rank and pay grade of SSG/E-6 on 15 February 1989, and that this was the highest rank and pay grade he held while serving on active duty.  It also shows that the applicant was reduced to the rank and pay grade of SGT/E-5 for cause on 1 July 1992.  

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of Orders Number 14-1, which directed his reduction to SGT/E-5, effective 1 July 1992, for misconduct.  

On 17 June 1993, a Physical Evaluation Board (PEB) convened to evaluate the applicant’s medical condition.  The PEB determined that the applicant was medically unfit for further service, and it recommended he receive a physical disability rating of 30 percent.  Based on its medical findings, the PEB further recommended that the applicant be permanently retired from the service by reason of physical disability.  On 7 July 1993, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing of his case.  

On 23 July 1993, Orders Number D139-12 were published by the United States Total Army Personnel Command (PERSCOM).  Theses orders directed the applicant’s relief from assignment and duty because of physical disability and his retirement on 20 August 1993.  

Title 10, U.S. Code, section 1372(3) contains the legal authority for assignment retirement grades for members being retired by reason of physical disability.  It states, in pertinent part,  that a member who is retired for physical disability 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.

Army Regulation 635-5 establishes the policy for rendering a satisfactory service determination on behalf of the Secretary of the Army.  It states, in pertinent part, that generally service will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct.

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 his retired rank and pay grade should have been established as SSG/E-6, which was the highest rank and pay grade he held while serving on active duty.  However, it finds insufficient evidence to support this claim.

2.  By law and regulation, a member retired by reason of physical disability is entitled to be retired in the highest rank and pay grade he satisfactorily held, as determined by the Secretary of the Army.  However, generally service will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct.

3.  The evidence of record confirms that the applicant held the rank and pay grade of SGT/E-5 on the date he was REFRAD, and that he had been reduced to that rank and pay grade due to his own misconduct on 1 July 1992.  Therefore, the Board finds that his request to change his retired rank and pay grade to SSG/E-6 is not warranted.  

4.  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

__WTM__  __CJP  _  __YM  __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002079417	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/30	
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.