RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040003280


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathan K. Rost              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his disability severance pay be computed
based upon the rank and grade of captain, O-3.

2.  The applicant states that he was on the promotion list to captain.
Title 10,     U. S. Code, section 1212 provides for disability severance
pay to be paid at the promotion list grade.

3.  The applicant provides his DD Form 214 (Certificate of Discharge or
Release from Active Duty) and his discharge orders with amendment.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and entered active duty on 7 April 1998.
 He was promoted to first lieutenant on 20 September 2002.

2.  On 16 October 2003, an informal Physical Evaluation Board (PEB) was
held at Fort Sam Houston, TX and found the applicant to be unfit for
retention due to chronic low back pain with a 10 percent disability rating.
On 20 October 2003, the applicant concurred with the findings of the
informal PEB and waived a formal hearing of his case.  On 21 October 2003,
the findings and recommendation of the PEB were approved for the Secretary
of the Army.

3.  Information obtained from the U. S. Army Physical Disability Agency
(USAPDA) on 9 March 2005 revealed that agency sent the information
concerning the approval of the applicant's PEB to the Fort Sam Houston, TX
Transition Point on 1 November 2003.

4.  On 4 November 2003, the Fiscal Year 2004 Captain Army Promotion List
selection board convened.  The applicant was selected for promotion.  The
board adjourned on 21 November 2003.

5.  Headquarters, III Corps and Fort Hood, Fort Hood, TX Orders 035-0228
dated 4 February 2004 were published separating the applicant with a
separation date of 10 March 2004.  On 10 March 2004, the applicant was
discharged by reason of disability with severance pay in the rank of first
lieutenant.  He was authorized severance pay in the rank and grade of first
lieutenant.

6.  On 14 March 2004, the captain promotion board results were released.

7.  Title 10, U. S. Code, section 1212(a)(C) states that a member is
entitled to disability severance pay at twice the amount of monthly basic
pay to which he would be entitled if serving (i) on active duty on the date
when he is separated and (ii) in the permanent regular or reserve grade to
which he would have been promoted had it not been for the physical
disability for which he is separated and which was found to exist as a
result of a physical examination.

8.  Title 10, U. S. Code, section 619(a)(5)(c)(2)(C) states that the
Secretary of the military department concerned may, by regulation, preclude
from consideration by a selection board by which he would otherwise be
eligible to be considered, an officer who has an established separation
date that is within 90 days after the date the promotion board is convened.

9.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1-10b in the
version in effect at the time, stated that promotion eligibility was
determined by the Deputy Chief of Staff for Personnel and approval by the
Secretary of the Army.  Paragraph 1-10e(1) stated that officers whose
established separation or retirement date was within 90 days after the date
on which the board was convened were not eligible for consideration by a
promotion selection board.

10.  Military Personnel (MILPER) Message Number 03-231, issued 4 August
2003, Subject, Fiscal Year 2004 (November) Captain Army Competitive
Category, Promotion Board Zones of Consideration, paragraph 11 stated that
officers with an approved separation date within 90 days of the convene
date of the board (i.e., separation date through 2 February 2004) were not
eligible for consideration.

11.  MILPER Message Number 00-077, Subject, Change to Disability Orders
Processing, provided that, effective 1 February 2000, the USAPDA would
release centralized control of release from active duty dates for Soldiers
being separated and retired as a result of physical disability.  When a
Soldier is found to be unfit by the PEB and all appeals and reviews
required have been completed, the Physical Disability Branch of the USAPDA
will transmit via Transproc or message the required data to complete the
orders process.  As a result of the change, the Physical Disability Branch
will assign a "not later than" date 90 days after the completion of
processing at the USAPDA headquarters.  It will be the purview of the
installation commander, through the Transition Point, to establish a
release date within the 90-day window.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant should have been separated no later than
           1 February 2004 (90 days after the USAPDA informed Fort Sam
Houston of the approved PEB findings) and therefore should have been
ineligible for promotion consideration.
2.  Nevertheless, for an unknown reason his separation orders were not
issued until 4 February 2004 with a separation date of 10 March 2004.  He
had been selected for promotion to captain by the Fiscal Year 2004 Captain
Army Promotion List selection board, he did separate later than the 2
February 2004 cutoff date announced in MILPER Message Number 03-231, and so
he should have received severance pay computed based upon the rank and
grade of captain, O-3.

BOARD VOTE:

__rjw___  __jtm___     __jkr___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
amending Headquarters, III Corps and Fort Hood, Fort Hood, TX Orders
  035-0228 dated 4 February 2004 to show he was authorized disability
severance pay in pay grade captain instead of pay grade first lieutenant.




            __Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040003280                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050315                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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