| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Ms. Margaret K. Patterson | Chairperson | |
| Mr. Ronald E. Blakely | Member | |
| Mr. Frank C. Jones, II | Member |
2. The applicant requests, in effect, that his retired rank and pay grade of staff sergeant/E-6 (SSG/E-6) be changed to sergeant first class/E-7 (SFC/E-7).
3. The applicant states, in effect, due to his medical retirement and brain surgery he was unable to pursue his pending promotion to SFC/E-7. He claims that he was in therapy for approximately two years and during this time he was unable to speak, walk, and dress. He states that if he were physically able at the time of his disability processing, he would have submitted a request for a change to his retired rank and pay grade. In support of his application, he submits a copies of the following documents: separation document (DD Form 214); 1974 Army Times article extract that lists soldiers selected for promotion to SFC/E-7; Physical Evaluation Board (PEB) Proceedings (DA Form 199), and Clinical Record (Standard Form 502).
4. Letters Orders Number D 6-30, dated 4 June 1974, issued by U.S. Army Total Army Personnel Command (PERSCOM), authorized the applicant’s release from active duty (REFRAD) on 18 June 1974, under the provisions of Title 10 of the United Sates Code, section 1202, by reason of physical disability. These orders also directed his placement on the Temporary Disability Retirement List (TDRL) on 19 June 1974, in the retired rank and pay grade of SSG/E-6.
5. The DD Form 214 issued to the applicant on 18 June 1974, shows that at that time he had completed a total of 17 years, 10 months, and 7 days of active military service, and he held the rank and pay grade of SSG/E-6.
6. Orders Number D 48-19, dated 11 March 1977, issued by PERSCOM, authorized the applicant’s removal from the TDRL, and authorized his placement on the Retired List, by reason of permanent disability on 31 March 1977. These orders confirm he was medically retired under the provisions of Title 10 of the United Sates Code, section 1201, by reason of permanent physical disability, and that he was placed on Retired List in retired rank and pay grade of SSG/E-6.
7. During the processing of this case, a member of the Board staff obtained a copy of Department of the Army (DA) Circular 624-57, dated 1 April 1974, Subject: Promotion to Sergeant First Class and Specialist Seven. This circular announced the list of those SSG and Specialist Six who were selected for promotion to SFC and Specialist Seven. The applicant’s name was included in this promotion circular list and he was assigned a promotion sequence number of 05929.
8. Title 10, U.S. Code, section 1372(3) governs the grade upon retirement of members of the armed forces who retire for physical disability. This law provides, pertinently, that a member who is retired for physical disability under section 1201 or 1204 is entitled to the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he retired.
CONCLUSIONS:
1. The Board notes the applicant’s contention that his military records be corrected to show that he was placed on the Retired List in rank and pay grade of SFC/E-7, and it finds this claim has merit.
2. By law, members retiring for physical disability should be retired in the rank to which they would have been promoted had it not been for the disability. The intent of the law is clearly to ensure that members whom the Army has identified as being fully qualified for promotion through the promotion board selection process are not denied those advancements because their careers are cut short by physical disability.
4. The evidence or record shows that the applicant was selected for promotion to SFC/E-7 by a properly constituted Department of the Army promotion selection board prior to his disability processing. Given his promotion list status, the Board presumes the applicant would have been promoted to SFC/E-7 at some point in his career had his service not been cut short because of his physical disability. Thus, in the interest of justice and equity, the Board finds his record should be corrected to show he was placed on the TDRL on 19 June 1974, and ultimately placed on the Retired List on 31 March 1977 as a SFC/E-7. Further, the Board concludes that it would be appropriate to provide him all back retired pay due as a result.
5. 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 SFC/E-7 on
19 June 1974, the date he was placed on the Temporary Disability Retired List, by reason of permanent disability, and 31 March 1977, the date he was placed on the Retired List, by reason of physical disability; and by providing him any back retired pay due as a result.
BOARD VOTE:
_MKP___ __REB__ __FCJ__ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Margaret K. Patterson
CHAIRPERSON
| CASE ID | AR2002081874 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | AR |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT PLUS) |
| REVIEW AUTHORITY | |
| ISSUES 1 319 | 131.0900 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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