PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 September 2001
         DOCKET NUMBER: AR2001056543


         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John E. Denning		Member
Mr. Terry L. Placek		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as specialist four (SP4/pay grade E-4) and that he be paid all back pay and allowances to which he is entitled.

3. The applicant states, in effect, that he was promoted to SP4/pay grade E-4 by orders, dated 30 July 1984. In support of his application, he provides a copy of his DD Form 214, a letter to the Defense Finance and Accounting Service (DFAS), dated 4 March 2001, 82d Airborne Division promotion orders, dated 30 July 1984, a Department of Veterans Affairs notification letter, dated 20 December 2000, and a photocopy of his retired military I.D. card.

4. The applicant’s military records show that he enlisted in the Regular Army on 18 August 1982 for a period of two years. He successfully completed basic and advanced individual training and parachutist training. He was assigned to Fort Bragg, North Carolina, as an airborne infantryman. The applicant was retired on 22 October 1984 by reason of physical disabilty.

5. A DA Form 4187 (Personnel Action), dated 18 August 1983, in the applicant’s records promoted him to private first class (PFC/pay grade E-3) with effective date of 18 August 1983.

6. Headquarters, 82d Airborne Division Orders Number 144-94, dated 30 July 1984, submitted by the applicant shows he was promoted to the rank of SP4/pay grade E-4 with an effective date of 18 August 1984.

7. Records show the applicant sustained a severe arm injury on 2 June 1984. This injury was determined to be in the line of duty. As a result of his injury, the applicant was reassigned from his unit at Fort Bragg, North Carolina, to Walter Reed Army Medical Center (WRAMC) to undergo disability processing. WRAMC Orders Number 137-25, dated 13 July 1984, assigned the applicant to the WRAMC Medical Holding Company effective 20 July 1984.

8. On 14 August 1984, a Physical Evaluation Board (PEB) at WRAMC determined that the applicant was unfit for duty. The Board recommended a combined rating of 80% and that the applicant be placed on the Temporary Disability Retired List (TDRL) with re-examination during September 1985.

9. His personnel records contain a DA Form 3713 (Data for Retired Pay), dated 24 September 1984 which shows his retired grade as “PFC”. His records also contain Department of the Army, U.S. Military Personnel Center (MILPERCEN) Orders Number D174-15, dated 24 September 1984, which placed him on the TDRL as a PFC/pay grade E-3 with an effective date of retirement as 22 October 1984 and with 80% disability.

10. Records show the applicant underwent a TDRL re-examination and was considered by a PEB on 25 October 1985. The Board found that the applicant was unfit and recommended a combined rating of 30% and that the applicant be permanently retired from the service.

11. The applicant’s records contain a second DA Form 3713 (Data for Retired Pay), dated 26 November 1985, which shows his retired grade as “PFC”. His records also contain U.S. Army MILPERCEN Orders Number D222-21, dated 26 November 1985, which removed him from the TDRL on 10 December 1985 and permanently retired him effective 11 December 1985 in his current grade of rank with a 30% disability rating. These orders show the applicant’s grade as “PFC”.

12. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

13. Section 1372 of Title 10, United States Code, governs the grade for members placed on the Temporary Disability Retired List (TDRL) or retired for physical disability. In pertinent part, the law states that unless entitled to a higher retired grade under some other provision of law, any member of the armed force who is retired for physical disability under Section 1201 or 1204 of Title 10 or whose name is placed on the TDRL under Section 1202 or 1205 of Title 10 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 is retired.

14. Army Regulation 635-5 provides instructions for the preparation of the
DD Form 214. It states, in pertinent part, that item 4a (Grade, Rate or Rank) and
4b (Pay Grade) will be completed to show the active duty grade or rank and pay grade at the time of separation.

CONCLUSIONS:

1. The applicant was promoted effective 18 August 1984 to the rank of SP4/pay grade E-4 by 82d Airborne orders, dated 30 July 1984. However, the applicant had been assigned to the WRAMC Medical Holding Detachment, effective 20 July 1984. Therefore, the 82d Airborne Division did not have the authority to promote the applicant to SP4/pay grade E-4 since he was assigned to the WRAMC at the time.

2. Law provides, in effect, that a service member may not be denied a promotion to which he or she would have otherwise been entitled were it not for the physical disability for which he or she was retired.

3. Based on the foregoing, the Board has concluded that the applicant would have been promoted to SP4/pay grade E-4 at his unit in the 82d Airborne Division had it not been for his transfer to WRAMC for disability processing and ultimately his placement on the TDRL and retirement for physical disability. Consistent with applicable law, the Board has determined the applicant should not be denied promotion to SP4/pay grade E-4 as a result of his placement on the TDRL and his retirement for disability.

4. In view of the foregoing facts and determinations, the applicant is entitled to:

         a. Promotion to SP4/pay grade E-4 effective 18 August 1984;

         b. Correction of his DD Form 214 with a separation date of 22 October 1984 to show in item 4a (Grade, Rate or Rank) the entry “SP4” and item 4b (Pay Grade) the entry “E-4”;

         c. Correction of the DA Form 3713 (Data for Retired Pay), dated 24 September 1984, to show the applicant’s active duty grade and retired grade at the time of placement on the TDRL was “SP4/E-4” instead of “PFC”;

         d. Correction of U.S. Army MILPERCEN Orders Number D174-15, dated 24 September 1984, to show the retired grade of the applicant was “SP4/E-4” instead of “PFC”;

         e. Correction of the DA Form 3713 (Data for Retired Pay), dated 26 November 1985, to show in item 3 (Retired Grade) and in item 10 (Retired Pay) the entries “SP4/E-4 instead of “PFC”;

         f. Correction of U.S. Army MILPERCEN Orders Number D222-21, dated 26 November 1985, to show the applicant’s rank is SP4/pay grade E-4 instead of PFC; and

         g. Payment of all back pay and allowances and back retired pay to which he is entitled based on correction of all records to show that he was promoted to SP4/E-4 effective 18 August 1984.

RECOMMENDATION:

1. That all of the Department of the Army records be corrected by showing:

         a. by showing that the individual concerned was promoted to the rank SP4/pay grade E-4 effective 18 August 1984;

         b. by showing in item 4a (Grade, Rate or Rank) the entry “SP4” and in item 4b (Pay Grade) the entry “E-4” on his DD Form 214 with a separation date of 22 October 1984;

         c. by showing on the DA Form 3713 (Data for Retired Pay), dated 24 September 1984, that his active duty grade and retired grade at the time of placement on the TDRL was “SP4/E-4” instead of “PFC”;

         d. by amending U.S. Army MILPERCEN Orders Number D222-21, dated 26 November 1985, to show his rank is SP4/pay grade E-4 instead of PFC; and

         e. by showing on his DA Form 3713 (Data for Retired Pay), dated 26 November 1985, in item 3 (Retired Grade) and in item 10 (Retired Pay) the entries “SP4/E-4 instead of “PFC”; and

         f. by amending U.S. Army MILPERCEN Orders Number D222-21, dated 26 November 1985, to show his rank is SP4/pay grade E-4 instead of PFC.

2. That, upon completion of corrections to all records and orders, the Defense Finance and Accounting Service audit the applicant’s active duty pay account and retired pay account to determine all monies due to the applicant, if any, and that the applicant be paid all monies due to him, if any.

BOARD VOTE:

FNE____ JED_____ TLP_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Fred N. Eichorn_______
                  CHAIRPERSON

---

INDEX

CASE ID	AR2001056543
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010913
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19841022
DISCHARGE AUTHORITY	Title 10 USC 1202
DISCHARGE REASON	Physical Disability Temporary
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	129.0000
2.
3.
4.
5.
6.