7. The applicant was relieved from duty and placed on the temporary disability retired list (TDRL) on 23 December 1988 with a 100 percent disability rating. His rank as shown on his orders and his DD Form 214 is Sergeant E-5. He had over 20 years of active service and 5 years, 11 months, and
7 days of inactive service.
8. On 17 July 1990 a physical evaluation board (PEB) determined that the applicant was physically unfit because of a status-post heart transplant, and recommended that he be permanently retired with a disability rating of
60 percent. That recommendation was approved and on
24 July 1990 the applicant was removed from the TDRL because of permanent physical disability and permanently retired with a 60 percent disability rating on 25 July 1990. The personal data completed for his retired pay shows his rank as Sergeant.
9. National Guard Regulation 600-200, then in effect, prescribes personnel management policies and procedures for Army National Guard enlisted soldiers. Section V of that regulation concerns reduction of soldiers, and paragraph
6-35d states that a soldier may be administratively reduced upon written request of the individual. A later version of that regulation expands on this paragraph by stating that the reduction requested by the soldier will be accomplished by the promotion authority without prejudice. Such reductions will normally be limited to purposes of voluntary entry on active duty in the Active Army or on Active Guard Reserve status.
10. Title 10, U.S. Code, Section 1372, provides for the grade on retirement for physical disability, and states in effect, that any member of an armed force 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.
11. Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability, and if found unfit, provides for disposition of the soldier. Paragraph C-12 of Appendix C provides information concerning computation of disability compensation pay, and states in pertinent part, that retired pay for soldiers who entered active duty on or prior to 7 September 1990 is computed on the highest grade satisfactorily held or current grade. DA makes the final grade decision.
12. Army Regulation 15-80 establishes policies, procedure, and responsibilities of the Army Grade Determination Review Board (AGDRB), and states in pertinent part that the AGDRB will make final determinations on behalf of the Secretary of the Army. It will 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. The AGDRB will consider each case on its own merits and is allowed substantial discretion in reaching it decision. Determination will be based on the soldier’s overall service in the grade in question. That regulation also states that the Secretary of the Army retains the prerogative to accomplish grade determinations without referral to the AGDRB.
13. In the processing of this case, an advisory opinion was obtained from the legal advisor to the Army Review Board Agency. That official stated that the applicant’s records should have been reviewed for a grade determination prior to placement of the applicant on the TDRL.
CONCLUSIONS:
1. The applicant served satisfactorily in the rank of Sergeant First Class for over 19 months in 1981 and 1982. His administrative reduction to Sergeant was at his own request and was not due to misconduct. That reduction and a subsequent reduction were for the purpose of assuming a position that called for a reduced rank.
2. The applicant should be placed on the TDRL on
23 December 1988 in the retired grade of Sergeant First Class E-7. He should be permanently retired in that rank
on 25 July 1990.
3. The applicant should receive all due pay and allowances in the pay grade of E-7 commencing from the placement on the TDRL on 23 December 1988.
4. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was placed on the TDRL in the retired grade of Sergeant First Class E-7 on 23 December 1988, and permanently retired in that rank and pay grade on
25 July 1990.
2. That the applicant receive all due pay and allowances.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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