BOARD DATE: 1 July 2010
DOCKET NUMBER: AR20090021090
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 his retired grade be corrected to sergeant first class (SFC)/E-7, the highest grade he held while serving on active duty.
2. The applicant states when he was retired by reason of permanent disability and placed on the Retired List in 1997, he was placed on the list as a staff sergeant (SSG)/E-6, the grade he held at the time. He claims a grade determination was never completed to see if he could be retired as an SFC/E-7, the highest grade he held and satisfactorily served in on active duty.
3. The applicant provides DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 24 April 1987 and 17 May 2007, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he initially entered active duty in the Regular Army (RA) on 10 May 1973. He was as promoted to SFC/E-7 on 1 May 1983 and continuously served on active duty until 24 April 1987, at which time he was honorably discharged in the rank of SFC/E-7 after completing 13 years, 11 months, and 15 days of active military service.
2. On 8 September 1988, the applicant enlisted in the RA for 4 years and reentered active duty in the grade sergeant/E-5. He was promoted to SSG/E-6 on 1 February 1994 and continuously served on active duty until 17 May 1997, at which time he was honorably retired by reason of physical disability and placed on the Retired List in the grade of SSG/E-6.
3. Title 10, U.S. Code, section 1372 (Grade on retirement for physical disability), provides guidance on the retirement grade authorized for members retiring by reason of physical disability. It states, unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability is entitled to the grade equivalent to the highest of the following:
a. the grade or rank in which he is serving on the date when his name is placed on the Temporary Disability Retired List or, if his name was not carried on that list, on the date when he is retired;
b. the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired;
c. 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 retired and which was found to exist as a result of a physical examination; or
d. the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention he should have been placed on the Retired List in the highest grade he held while serving on active duty has been carefully considered and found to have merit. By law, a member retired by reason of physical disability is entitled to be placed on the Retired List in the highest grade or rank in which he satisfactorily served.
2. The evidence of record confirms the applicant satisfactorily served in the grade of SFC/E-7 from 1 May 1983 through 24 April 1987. As a result, he should have been placed on the Retired List in this grade at the time of his physical disability retirement and it would be appropriate to correct his record accordingly and to provide him all back retired pay due as a result of this correction.
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 he was placed on the Retired List in the grade SFC/E-7 effective 18 May 1997 and by providing him all back retired pay due as a result.
__________x_______________
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) AR20090021090
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