RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040010254


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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.  In effect, the applicant requests that his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show award of the
Parachutist Badge and to show his rank as specialist (pay grade E4).

2.  The applicant made no other statement.

3.  The applicant provides a copy of his DD Form 214, a copy of an order
placing him on the temporary disability retired list (TDRL), and a copy of
pages from his personnel qualification record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 May 1995.  The application submitted in this case is
dated             9 November 2004.

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 limitations 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.  The applicant enlisted in the Army for 4 years on 17 August 1989,
completed training as a combat engineer, and in December 1989 was assigned
to Fort Benning, Georgia, for airborne training.  He completed that
training and was awarded the Parachutist Badge on 22 December 1989.

4.  In January 1990 the applicant was assigned to an engineer battalion in
Germany.  He was promoted to specialist, pay grade E4, on 1 January 1991.
He returned to the United States and in August 1991 was assigned to Fort
Sill, Oklahoma.  Thereafter, he was transferred to Fort Carson, Colorado.
He reenlisted in the Army for 3 years in pay grade E4 on 21 December 1992.

5.  On 17 November 1993 the applicant received a permanent profile because
of pain and blueness in his fingers whenever exposed to coldness.  On 18
August 1994 a Medical Evaluation Board (MEB) referred the applicant to a
Physical Evaluation Board (PEB).  On 8 September 1994 the PEB found the
applicant physically fit and recommended that he be returned to duty as
fit.  The applicant did not concur and demanded a formal hearing.  An
informal board, however, reconsidered his case on 22 December 1994,
determined that he was physically unfit to perform his duties, and
recommended that he be placed on the TDRL with a 30 percent disability
rating.  The applicant concurred.  Throughout these proceedings, except for
a 13 December 1994 addendum to the Medical Evaluation Board, his rank is
shown as specialist.  The addendum reflects his rank as private first
class.

6.  On 18 January 1995 orders were published by the Army Medical Department
Activity at Fort Carson assigning the applicant to the Medical Holding
Detachment at Fort Carson.  Those orders show his rank as PFC (private
first class).

7.  On 29 March 1995 the Total Army Personnel Command published orders
retiring him effective on 3 May 1995 and placing him on the retired list
effective on 4 May 1995 in the retired grade of SPC (specialist).

8.  On 29 March 1995 Headquarters, Fort Carson published orders reassigning
the applicant to the Fort Carson transition center for separation
processing with a reporting date of 3 May 1995.  His rank shown on those
orders is PFC.

9.  The applicant’s DD Form 214 shows that he was retired on 3 May 1995 in
the rank and pay grade of PFC and E3, respectively, with a date of rank of
               9 September 1994.

10.  On 27 November 1995 orders were published attaching the applicant to
Darnall Army Community Hospital at Fort Hood, Texas for a periodic physical
examination.  His rank on those orders is shown as SPC.

11.  On 15 November 1996 a PEB determined that the applicant was physically
unfit to perform his duties and recommended that he be separated with
severance pay with a disability rating of 10 percent.  The applicant
concurred.
His rank on these proceedings is shown as SPC.

12.  On 12 December 1996 the applicant was removed from the TDRL and
discharged from the Army with a 10 percent disability rating.  His rank on
the orders reflecting his discharge is shown as SPC.

13.  Army Regulation 635-5, which establishes the policies and procedures
for the preparation and distribution of separation documents states that
the separation document will reflect the active duty grade or rank and pay
grade “at time of separation from ERB/ORB [Enlisted Record Brief/Officer
Record Brief].”

14.  Section 1372 of Title 10, United States Code, states that any member
of an armed force whose name is placed on the temporary disability retired
list is entitled to the grade or rank in which he is serving on the date
when his name is placed on the TDRL or, if his name was not carried on that
list, on the date when he is retired, or the highest temporary grade or
rank in which he served satisfactorily, as determined by the Secretary of
the armed force from which he served.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed airborne training and was awarded the
Parachutist Badge.  His record should reflect that award.

2.  Although the applicant was advanced to specialist, pay grade E4, on
         1 January 1991, reenlisted in that rank and pay grade in December
1992, underwent disability processing in 1994, 1995, and 1996, with the
disability proceedings reflecting his rank as specialist, assignment orders
in late 1994 and in 1995 show that his rank was private first class.  His
DD Form 214 shows that he was retired in the rank of private first class on
3 May 1995, the day prior to being placed on the TDRL, with a date of rank
of 9 September 1994.

3.  Although it is understandable that the applicant believes that his
separation document is in error, because it shows that he was separated in
the rank of PFC, pay grade E3, while his orders placing him on the TDRL and
the orders removing him from the TDRL and discharging him show his rank as
specialist (pay grade E4), in reality two separate actions occurred.  The
first action was his retirement on 3 May 1995, when he was issued a DD Form
214 reflecting that separation, and the second action was when his name was
placed on the retired list the following day, 4 May 1995.  He was separated
on 3 May 1995 in pay grade E3, having apparently been reduced to that grade
in September 1994, and placed on the retired list on 4 May 1995.  As such,
there is no error in the information reflected on his separation document
and no injustice is created by that information.

4.  Consequently, the applicant’s request to correct his DD Form 214 to
show his rank and pay grade as specialist, pay grade E4, is denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___BE __  ___KW__  __PM ___  GRANT PARTIAL 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 award of the
Parachutist Badge.

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
correcting the applicant’s    DD Form 214 to show his rank as specialist,
pay grade E4.




                            ______Barbara Ellis________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010254                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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