RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 August 2004
      DOCKET NUMBER:   AR2004100785


      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:

|     |Ms. Gail J. Wire                  |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 rank and pay grade on the
Retired List be changed to sergeant/E-5 (SGT/E-5).

2.  The applicant states, in effect, that the highest rank and pay grade he
held while in the Army was SGT/E-5.  He states he was a SGT/E-5 for four
years and was medically discharged from the Army in 1991 and placed on the
Retired List in the rank and pay grade of specialist/E-4 (SPC/E-4).  He
further states that at the time of his release from active duty (REFRAD),
he was on the SGT/E-5  promotion standing list, but was unable to regain
the rank and pay grade he held from 1982 to 1986.

3.  The applicant provides the following documents in support of his
application:  30 September 1991 Separation Document (DD Form 214);
Retirement Orders (Orders Number D154-23, dated 9 August 1991, issued by
United States Army Total Army Personnel Command (PERSCOM); Honorable
Discharge Certificate, dated 15 March 1982; 11 March 1960 Enlistment
Contract (DD Form 4); Two Academic Evaluation Reports (AERs) ending on 12
March 1982 and 3 November 1983; Two Enlisted Evaluation Reports (EERs)
ending in April 1982 and April 1985; Disposition Form (Integration to
Promotion Standing List), dated
4 November 1987; Military Experience Form (DA Form 2586); Army Achievement
Medal Certificate, dated 11 May 1983; and Certificate of Training, dated 18
May 1984.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 September 1991.  The application submitted in this
case is dated 3 November 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.  The applicant’s record shows that he initially entered active duty in
the Regular Army on 12 September 1978.  He was initially trained in and
awarded the primary military occupational specialty (MOS) 19E (Armor
Crewmember) and was retrained and awarded the primary MOS of 77F (Petroleum
Supply Specialist) in 1987.

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was promoted to the rank and
pay grade of specialist five/E-5 (SP5/E-5) on 5 January 1982 and that he
held that rank and pay grade until 1 May 1985, at which time he was reduced
for cause.

5.  The applicant’s Personnel Qualification Record Part I (DA Form 2),
dated
28 March 1991, shows in Section II (Qualification Data) that the applicant
was in a promotable (P) status as of the date the record was created.  It
also shows that he was on the SGT/E-5 promotion standing list in MOS 77F
and was granted a promotion point total of 694 during a recomputation
completed in February 1990.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
copy of a promotion packet that confirms the applicant was recommended for
promotion to SGT/E-5 and placed on the promotion standing list in MOS 19E
on 1 May 1986.  In September 1987, his promotion standing list MOS was
changed to
77F and he remained on the promotion list in this MOS until his REFRAD.

7.  Orders Number D154-23, dated 9 August 1991, issued by PERSCOM, directed
the applicant’s retirement, by reason of permanent disability, on
30 September 1991.  These orders further authorized the applicant’s
placement on the Retired List on 1 October 1991, in the rank and pay grade
of SPC/E-4.

8.  On 30 September 1991, the applicant was REFRAD under the provisions of
paragraph 4-24e(1), Army Regulation 635-200, by reason of permanent
disability.  The DD Form 214 he was issued at the time indicates he held
the rank and pay grade of SPC/E-4 at the time of his separation and that he
had completed a total of 13 years and 19 days of active military service.
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 at the time 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.  Army Regulation 15-80 establishes policies, procedures, and
responsibilities of the Army Grade Determination Review Board (AGDRB).
Chapter 1, paragraph 6a, states in pertinent part, the AGDRB will review
cases and determine the highest grade in which a soldier has served
satisfactorily for purposes of service/physical disability retirement,
computation of retired pay, or separation for physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was on a valid SGT/E-5
promotion standing list at the time the disability that resulted in his
retirement was discovered.  Further, the record is void of any indication
of a formal grade determination being made during the applicant’s physical
disability separation processing, which is required by law and regulation
in order to determine the proper retirement grade.

2.  The evidence of record confirms that the applicant had been selected
for promotion to SGT/E-5 prior to being processed for retirement by reason
of physical disability.  By law and regulation, members who are retired for
physical disability are entitled to be placed on the Retired List in the
permanent regular or reserve grade to which they would have been promoted
had it not been for the physical disability that resulted in the
retirement.  Therefore, the applicant was unjustly denied his promotion due
to a physical disability that resulted in his disability separation
processing.

3.  In view of the facts of this case, the applicant should have been
placed on the Retired List in the rank and pay grade of SGT/E-5.
Therefore, it would be appropriate to correct his record to show his
retired rank and pay grade as SGT/E-5 and by providing him any back retired
pay due as a result.
BOARD VOTE:

_GJW___  _KAH____  _PMS__   GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for 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 that he was placed on the
Retired List in the rank and pay grade of sergeant/E-5 on 1 October 1991;
and by providing him any back pay and allowances due based on this
correction to his retired rank and pay grade.




            ____GAIL J. WIRE_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100785                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1991/09/30                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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