MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002078537


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Powers		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)

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APPLICANT REQUESTS: In effect, that his retirement rank and pay grade be changed to sergeant first class/E-7 (SFC/E-7).

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

He initially enlisted in the Regular Army and entered active duty on 29 April 1960, and served until being honorably separated for the purpose of immediate reenlistment on 28 April 1963, and on 29 April 1963, he reenlisted for six years.

Special Orders Number 164, dated 11 September 1968, issued by Headquarters, United States Darnall Army Hospital, Fort Hood, Texas, authorized the applicant’s promotion to SFC/E-7. The special instructions contained in these orders indicated that the incurred a two year service obligation prior to voluntary non-disability retirement.

In October 1968, shortly after his promotion to SFC/E-7, the applicant received assignment instructions from Department of the Army (DA). However, he declined to reenlist to meet the service remaining requirement of the assignment instructions. In November 1968, the commander, Darnall Army Hospital, Fort Hood, notified DA that the applicant had an ETS of 28 April 1969, and that he had refused to reenlist to meet the service remaining requirement necessary to accept the assignment. Therefore, it was requested that DA delete the applicant from the assignment in question.

On 28 April 1969, the applicant was discharged after completing a total of
9 years of active military service. The separation document (DD Form 214) issued to the applicant on the date of his separation confirms that he held the rank and pay grade of SFC/E-7 on that date.

On 23 June 1970, after a break in service of just over a year, the applicant reenlisted in the Regular Army for three years. The enlistment contract
(DD Form 4), confirms that he was authorized to reenter the Army in the pay grade of E-6, and that he was appointed a specialist six/E-6 (SP6/E-6) in conjunction with his reenlistment.

On 3 February 1972, a Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas, to evaluate the applicant’s medical condition. The PEB determined that the applicant was physically unfit to perform the duties of his grade and specialty and assigned a disability rating of 50 percent. Based its findings, the PEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL).

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Letter Orders Number D 3-1156, dated 20 March 1972, issued by DA, directed the applicant’s release from active duty (REFRAD) on 27 March 1972, and his placement on the TDRL on 28 March 1972, under the provisions of Title 10 of the United States Code, section 1202. These orders also authorized the applicant the retired rank and pay grade of SP6/E-6.

On 27 March 1972, the applicant was REFRAD, for the purpose of being placed on the TDRL, after completing a total of 10 years, 9 months, and 5 days of active military service. The DD Form 214 issued to him on this date confirms that he held the rank and pay grade of SP6/E-6 on the date of his separation.

On 23 April 1975, a PEB convened in San Francisco, California, to reevaluate the applicant’s medial condition. The PEB found that the applicant was still medically unfit to perform the duties of his grade and specialty, and that his conditional had stabilized at the degree of severity that would warrant a permanent disability rating. As a result of its findings, the PEB recommended that the applicant be permanently retired from military service.

Letter Orders Number D 6-90, dated 10 June 1975, issued by DA, directed that the applicant be removed from the TDRL on 30 June 1975, and that he be permanently retired in his current grade on the following day. Accordingly, the applicant was placed on the Retired List in the rank and pay grade of SP6/E-6 on 1 July 1975.

Title 10 of the United States Code, section 1202 provides the legal authority for placing members on active duty for more than 30 days on the TDRL. It states, in effect, that upon a determination by the Secretary concerned a member who is determined to be unfit to perform the duties of their office, grade, rank, or rating because of a temporary physical disability incurred while on active duty may be placed on the TDRL and receive retired pay.

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 TDRL; the highest grade in which he served satisfactorily; the grade to which he would have been promoted. This law applies both at the time a member is placed on the TDRL or the Retired List based on a permanent disability.

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Army Regulation 600-200, in effect at the time, contained the policy and procedures for the management of enlisted personnel. Chapter 7 contained guidance on enlisted promotions. It stated, in pertinent part, that soldiers promoted to the grades of E-7, E-8, and E-9, incurred a two year service obligation.

Army Regulation 635-200, in effect at the time, contained the policy and procedure on the separation of enlisted personnel. Chapter 12 contained guidance on voluntary retirement. It stated, in pertinent part, that soldiers promoted to the pay grades of E-7, E-8 , and E-9, incurred a two year service obligation that had to be completed prior to their voluntary retirement.

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 request that his retired rank and pay grade be changed to SFC/E-7. However, it finds insufficient evidence to support this claim.

2. By law, members being retired by reason of physical disability are entitled to a retired grade equivalent to the highest of the following: the grade in which he/she is serving on the date when his/her name is placed on the TDRL; the highest grade in which he/she served satisfactorily; or the grade to which he/she would have been promoted had it not been for the disability. Further, the applicable laws and regulations require that members promoted to the pay grades of E-7,
E-8, or E-9 are required to complete a two year service obligation from the date of promotion in order to meet the satisfactory service provisions of the law.

3. The evidence of record confirms that the applicant was promoted to SFC/E-7 on 11 September 1968, during a prior enlistment. It also confirms that he voluntarily elected not to reenlist to meet an assignment service remaining requirement. As a result, he was discharged at his ETS on 28 April 1969, just over seven months after he was promoted to SFC/E-7. Given the applicant failed to complete the two year promotion service obligation he incurred upon his promotion to SFC/E-7, the Board finds that his service in that rank and pay grade failed to meet the satisfactory service provisions of the law.

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4. In addition, the record confirms that the applicant reenlisted in the Army on
23 June 1970 and was authorized to reenter in the rank and pay grade of
SP6/E-6, and that he held this rank and pay grade on the date of his REFRAD for the purpose of being placed on the TDRL. Therefore, the Board finds no evidence to suggest he would have been promoted to SFC/E-7 had it not been for the disability that resulted in his retirement, and it concludes that he was properly placed on the TDRL and the Retired List as a SP6/E-6 in accordance with the applicable laws and regulations in effect at the time.

5. 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.

6. 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

__LLS__ __BJE___ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078537
SUFFIX
RECON
DATE BOARDED	2002/12/17
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1972/03/27
DISCHARGE AUTHORITY	10 USC 1202
DISCHARGE REASON	DISABILITY
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 319	131.0900
3.
4.
5.
6.