| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Thomas B. Redfern | Chairperson | ||
| Ms. Linda D. Simmons | Member | ||
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: In effect, that he be promoted and advanced on the Retired List to the rank and pay grade of sergeant/E-5 (SGT/E-5).
APPLICANT STATES: In effect, that subsequent to his injury, his promotion orders to SGT/E-5 were never published.
EVIDENCE OF RECORD: The applicant's military records show:
On 28 September 1973, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement, by reason of a permanent physical disability. At the time of his separation, he had completed a total of 1 year,
6 months, and 6 days of active military service.
The applicant’s Enlisted Qualification Record (DA Form 20) confirms, in Item 33 (Appointments and Reductions), that he was promoted to specialist four/E-4 (SP4/E-4) on 11 August 1972, and that this was the highest rank he attained while serving on active duty. In addition, his Military Personnel Records Jacket (MPRJ) contains no orders or other documents that indicate he was ever recommended, selected, or promoted to SGT/E-5 by the proper authority.
On 21 August 1973, 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. It recommended that he receive a physical disability rating of 100 percent and that he be permanently retired from the service by reason of physical disability. On 22 August 1973, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing of his case.
On 20 September 1973, Orders Number D-322 were published by the United States Army Military Personnel Center (MILPERCEN), which directed the applicant’s relief from assignment and duty because of physical disability and his retirement on 28 September 1973.
A Data for Retired Pay (DA Form 3713), dated 23 December 1987, which was prepared on the applicant during his retirement processing, contains the entry SP4/E-4 Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained); and Item 10 (Retired Pay). This document also confirms that he was placed on the Retired List in that rank and pay grade on 29 September 1973.
The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that on 28 September 1973, he was REFRAD under the provisions of Title 10 USC section 1201, by reason of physical disability-permanent, and that he held the rank and pay grade of
SP4/E-4 on that date.
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 and was found to exist as a result of a physical examination.
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 promotion orders to pay grade E-5 were not published subsequent to the incurring medical condition that resulted in his disability retirement. However, it finds insufficient evidence to support this claim.
2. The evidence of record confirms that the highest rank and pay grade the applicant attained while serving on active duty was SP4/E-4. It contains no indication that the applicant was ever recommended, selected, or promoted to the rank and pay grade of SGT/E-5 by the proper promotion authority prior to incurring the injury that resulted in his disability retirement.
3. In addition, the applicant fails to provide independent evidence to show that he was ever recommended for promotion and/or placed on a valid promotion standing list by the proper authority prior to his disability processing. Lacking any evidence to support the applicant’s contention, the Board concludes that he was appropriately placed on the Retired List in the rank and pay grade of SP4/E-4 in accordance with the applicable law and regulation.
4. 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.
5. 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
__jm____ ___lds___ __tbr____ DENY APPLICATION
| CASE ID | AR2003083799 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2003/05/01 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 306 | 129.0400 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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