RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          19 AUGUST 2004
      DOCKET NUMBER:  AR2004100749


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Mr. William Powers                |     |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, in effect, that his 1980 separation document be
corrected to show that he was separated in pay grade E-4 vice E-3 and that
he held specialty 11D10.

2.  The applicant states that his correct MOS (military occupational
specialty) was 11D10, not 11B10, and that his correct rank/grade was E-
4/SP4.

3.  The applicant provides a copy of his 1981 certificate of retirement in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
which occurred on 22 April 1980.  The application submitted in this case is
dated
13 October 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 5 April 1976 for a period of 3 years.  He was initially
trained in MOS 11D but that specialty was subsequently converted to MOS
19D.  Orders contained in the applicant’s file confirm that he was awarded
MOS 19D in 1978.  The applicant’s 1980 separation document shows that the
applicant held MOS 19D at the time of his separation.

4.  The applicant was promoted to pay grade E-4 in December 1977 but
reduced to pay grade E-3 in January 1979 as a result of punishment under
Article 15 of the Uniform Code of Military Justice for possession of
marijuana.

5.  On 16 March 1979, while on transition leave, the applicant was involved
in a motor vehicle accident, which resulted in the death of his spouse and
two of his four children.  The applicant sustained multiple injuries and
was assigned to Fitzsimons Army Medical Center in Denver for disability
processing.

6.  On 22 April 1980, after being retained on active duty for the
convenience of the Government, the applicant was discharged and his name
placed on the TDRL (Temporary Disability Retired List) the following day.
His initial separation orders indicate that his “retired grade” (emphasis
added) was pay grade E-3.  However, those orders were subsequently amended
on 29 May 1980 to show his retired grade as E-4 following the decision of
an Ad Hoc Review Board’s grade determination.  The Ad Hoc Review Board
determination noted that the “traumatic circumstances which occasioned
placement on the TDRL are of such a nature that compassionate consideration
in this case is appropriate” and recommended that the applicant be “place
on the TDRL in grade of E4.”

7.  The applicant’s separation document indicated that he was discharged by
reason of temporary physical disability, in the grade of E-3.

8.  In November 1981 the applicant’s name was removed from the TDRL and he
was permanently retired with a 50 percent disability rating.

9.  Army Regulation 15-80 states that a grade determination is an
administrative decision to determine appropriate retirement grade,
retirement pay, or other separation pay.  It states that an enlisted
Soldier being processed for physical disability separation or disability
retirement, not currently serving in the highest grade served, will be
referred for a grade determination, unless the soldier is entitled to a
higher or equal grade by operation of law.

DISCUSSION AND CONCLUSIONS:

1.  It is unclear why the applicant indicated that his MOS was reflected as
11B, when his separation document indicates it was 19D.  The evidence,
however, confirms that while the applicant did hold specialty 11D at one
time, that specialty was subsequently converted to MOS 19D.  The
applicant’s separation document reflects the applicant’s correct specialty.

2.  While the evidence does confirm that a grade determination review
concluded that it would be appropriate to place the applicant’s name on the
TDRL in the retired grade E-4, that determination did not affect the grade
in which the applicant was separated from active duty.  The grade
determination was for pay benefits.  The order placing the applicant on the
TDRL reflects the appropriate retired grade of E-4 and his separation
document reflects the appropriate separation grade of E-3.

3.  However, in the interest of justice and clarity, it would be
appropriate to insert a statement in the remarks section of the applicant’s
separation document to show that an Ad Hoc Review Board determined that the
applicant’s retired grade for pay purposes was determined to be E-4 and
that his name was placed on the TDRL in that grade.

BOARD VOTE:

___FE___  ___CG__  ___WP  _  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing in the remarks
section of his April 1980 separation document that an Ad Hoc Review Board
determined that the applicant’s retired grade for pay purposes was
determined to be E-4 and that his name was placed on the TDRL in that grade

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
reflection of specialty 11D on his separation document and that he was
discharged in pay grade E-4.


            _____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100749                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040819                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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