IN THE CASE OF:	  

		BOARD DATE:	        05 MARCH 2009

		DOCKET NUMBER:  AR20080015435 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show that he  was placed on the Temporary Disability Retired List (TDRL) in the rank of captain (O-3). 

2.  The applicant states, in effect, that he was on the promotion list at the time that he was placed on the TDRL.

3.  The applicant provides in support of his application a copy of a statement, dated 10 February 2009, amending his DD Form 149 (Application for Correction of Military Records); a copy of a letter from a general officer, dated 7 March 2002, congratulating him on his promotion to captain; a copy of a letter from a colonel, dated 7 March 2002, congratulating him on his promotion to captain; a copy of Orders 129-0001, dated 9 May 2002, releasing him from assignment and placing him on the TDRL; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a letter from the Defense Finance and Accounting Service (DFAS), dated 17 June 2008, informing him that he must apply to this Board for a correction of his rank; a copy of a letter from the United States Army Physical Disability Agency, dated 10 August 2007, notifying him that he should have been placed on the TDRL in the rank of captain; a copy of a memorandum from the U.S. Army Physical Disability Agency (USAPDA), dated 
21 August 2007, transmitting documents pertaining to his removal from the TDRL; a copy of Orders D234-04, dated 21 August 2007, removing him from the TDRL and discharging him from the service; and a letter from DFAS, dated 
24 October 2007, notifying him of his removal from the TDRL and of his discharge from the service with severance pay. 
CONSIDERATION OF EVIDENCE:

1.  On 28 January 1998, the applicant enlisted in the Regular Army in Spokane, Washington, for 4 years, in the pay grade of E-4.  He successfully completed his training as an infantryman.

2.  The available records show that upon completion of Officer Candidate School, the applicant accepted an appointment as a second lieutenant (O-1) in the United States Army Reserve (USAR) on 3 February 1999 and entered active duty that date.  He was promoted to the rank of first lieutenant (O-2) on 3 August 2000.

3.  The available evidence does not include the official notification regarding the applicant’s selection for promotion to the rank of captain (O-3).  However, letters are available that show the Commander, 25th Infantry Division (Light) and United States Army, Hawaii, and the Assistant Division Commander congratulated the applicant on his selection for promotion to captain.  Both letters are dated             7 March 2002.

4.  The applicant’s Physical Evaluation Board (PEB) Proceedings were not available.  However, the available records show that Orders 129-0001 were published on 9 May 2002 retiring the applicant from the Army, effective 9 July 2002, due to a physical disability and placing him on the TDRL, effective 10 July 2002, in the rank of first lieutenant.

5.  The applicant was furnished a DD Form 214 that shows he retired from the Army, on 9 July 2002, under the provisions of Army Regulation 636-40, paragraph 4-24b(2), due to a temporary disability.

6.  In response to a request from the applicant, on 17 June 2007, the DFAS notified the applicant that his request for a change in rank could not be processed because his retired pay account is directly related to his active duty military records.  He was informed that a change of his rank in his official Army records could be made only after an administrative examination of evidence and approval by this Board and he was provided an addressed to submit his application.







7.  In response to a request from the applicant, the USAPDA informed him on 10 August 2007 that his entire case had been reviewed and that his case had been properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System.  The USAPDA noted that a review of his PEB Proceedings pertaining to his formal board of 12 June 2007 contains a statement that he was on the promotion list to captain at the time that he was placed on the TDRL.  The USAPDA stated that under the provisions of Title 10, United States Code 1372 as amended by Public Law 104-201, section 577, dated 23 September 1996, he should have been separated and placed on the TDRL in the rank of captain.  He was told to submit a request to this Board if he believed that an injustice or error had been made by the Government.

8.  On 21 August 2007, Orders D234-04 were published by USAPDA removing the applicant from the TDRL and discharging him from the service with severance pay, with a 10 percent disability rating and an effective date of 9 July 2007.  The USAPDA forwarded the orders to the applicant on 21 August 2007 as an enclosure to a memorandum informing him that he would receive no further Army retired pay after the effective date reflected on the orders.  

9.  On 24 October 2007, DFAS notified that applicant that he had been removed from the TDRL and discharged from the military for physical disability with severance pay.  He was informed that a check had been issued covering his severance pay and that his pay had been computed based on his rank, pay grade, total years of service, and years of active service.

10.  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. 

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



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been placed on the TDRL and permanently retired in the rank of captain (O-3).  His contentions have been considered and determined to have merit.

2.  The evidence of record shows the applicant had been selected for promotion to the rank of captain prior to being placed on the TDRL.  Further, the USAPDA notified him that his PEB Proceedings contained a statement that indicated he was on a promotion list for the rank of captain at the time he was placed on the TDRL and in accordance with applicable laws, he should have been separated and placed on the TDRL in the rank of captain. 

3.  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 established promotion board selection process are not denied those advancements because their careers are cut short by physical disability.

4.  Given his promotion list status, it is presumed that the applicant would have been promoted to captain 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 and retired in the rank of captain, and that he be provided all back pay and allowances due as a result. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___X_____  ___X_____  ___X_____  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 showing that he was placed on the TDRL and retired in the rank of captain (O-3), and by providing him all back pay and allowances due as a result of these corrections.  




      _______ _ XXX  _______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080015435



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ABCMR Record of Proceedings (cont)                                         AR20080015435



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