RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 June 2005
      DOCKET NUMBER:  AR20040010490


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |Member               |

      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, reconsideration of his requests to
change his retirement date to August 1985, and to correct his retirement
rank.

2.  The applicant states, in effect, that he was not placed on the Retired
List until 1985, not 1968.  As a result, he was not legally discharged
until 1985.  He further states that his rank was not restored as it should
have been based on the initial recommendation of the Board.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number AC84-
02460 on
26 June 1985.

2.  The applicant’s record shows that he served on active duty for 4 years,

10 months and 16 days until being separated under the provisions of
Army Regulation 635-212, by reason unsuitability (Character and Behavior
Disorder) with a general, under honorable conditions discharge.

3.  The applicant’s record shows that he attained the rank and pay grade of
specialist four/E-4 (SP4/E-4) on 13 August 1966, and that this is the
highest rank he held while serving on active duty.  It further shows that
on 3 July 1968, he was reduced to the rank and pay grade of private first
class/E-3 (PFC/E-3) as a result of nonjudicial punishment (NJP) action
imposed under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ).  On 9 October 1968, he was further reduced to private/E-2
(PV2/E-2) as a result of Article 15 NJP action.

4.  In its original deliberations, the Board noted that the applicant was
struck on the head by a tree on 28 February 1967, while serving in the
Republic of Vietnam (RVN).  It also noted that on 14 July 1967, he
sustained a fragment wound to the arm while on a search and destroy mission
in the RVN.   The Board further indicated that a psychiatric evaluation of
31 October 1968 resulted in the applicant being diagnosed with a character
and behavior disorder, which ultimately led to his separation under
unsuitability provisions of the separations regulation.

5.  The Office of the Surgeon General (OTSG) provided an advisory opinion
to the Board during its original consideration of this case.  The OTSG
opined that following the applicant’s head trauma of February 1967, his
psychological and personality difficulties were exacerbated with
significant worsening of his mental condition, so that, by the time of his
discharge in December 1968, he was manifesting a change of personality that
was due to a specific organic disorder.

6.  The United States Army Physical Disability Agency (USAPDA) also
provided an opinion to the Board.  It indicated that the applicant was
medically unfit at the time of his separation, and recommended the
applicant be placed on the Retired List, by reason of permanent disability,
effective 7 December 1968, with a
30 percent disability rating.

7.  Based on the medical opinions provided by the OTSG and the USAPDA, the
Board concluded that the applicant should have been found physically unfit
for military service and permanently retired, by reason of disability on 6
December 1968.  The Board finally recommended that the applicant’s record
be corrected to show he was released from active duty (REFRAD) on 6
December 1968, by reason of physical disability rated at 30 percent; and
permanently retired with entitlement to retired pay in the highest grade in
which he satisfactorily served as defined in Title 10 of the United States
Code, Section 1372.

8.  The applicant’s record contains a Data for Retired Pay (DA Form 3713),
dated 30 August 1985, which was prepared on the applicant during the
retirement processing that resulted from the Board’s decision.  This
document contains the entry PV2 in Item 2 (Active Duty Grade), Item 3
(Retired Grade), Item 8 (Highest Grade Held) and Item 10 (Retired Pay).

9.  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 Retired List; the
highest grade in which he served satisfactorily, the grade to which he
would have been promoted had it not been for the physical disability that
resulted in retirement.
10.  A member of the Army Grade Determination Review Board (AGDRB) staff
reviewed the applicant’s case and found the AGDRB lacked jurisdiction in
the case because the applicant was requesting correction, or amendment, of
a prior decision of this Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his retirement date should be changed
to August 1985, the date the Board decision in his case was implemented,
was carefully considered.  However, the original Board recommendation in
this case clearly stipulated that his record should be corrected to show he
was REFRAD by reason of permanent physical disability on 6 December 1968,
in lieu of the GD of the same date he held at the time.  Therefore, there
is an insufficient evidentiary basis to support changing his record to show
he continued to serve on active duty through 1985, as he is now requesting.


2.  It its original recommendation, the Board intended that the applicant
be placed on the Retired List in the highest grade he satisfactorily held.
A review of the retirement processing shows that a DA Form 3713 that was
prepared on the applicant erroneously indicates that PV2 was the highest
grade he held while serving on active duty.  This would appear to indicate
that no satisfactory service determination was made regarding his service
in higher grades.

3.  The OTSG advisory opinion provided to the Board during its original
deliberations on this case confirms the applicant’s psychological and
personality difficulties were exacerbated following his February 1967 head
trauma incident.  Given this opinion, it appears this should be considered
a significant mitigating factor in the acts of misconduct the applicant
committed after that date.

4.  The evidence of record confirms the applicant was reduced to PFC/E-3
and to PV2/E-2 for offenses he committed after his February 1967 head
injury.  Therefore, it appears it would serve the interest of equity to
correct the applicant’s record to show he satisfactorily served in the rank
and pay grade SP4/E-4; and as a result, he was placed on the Retired List
in that rank and pay grade on 7 December 1968.  It would also be
appropriate to provide him any back pay and allowances due as a result of
this correction to his retired grade.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___RJW _  __KWL _  ___DRT_  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant amendment of the ABCMR’s decision in Docket Number AC84-02460,
dated
26 June 1985.  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 Retired List in the rank and pay grade of specialist
four/E-4 on
7 December 1968; and by providing him any back retired pay due as a result.


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
changing the date he was released from active duty and the date he was
placed on the Retired List.




            ____Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010490                           |
|SUFFIX                  |                                        |
|RECON                   |1985/06/26 (AC84-02460)                 |
|DATE BOARDED            |2005/06/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/12/06                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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