RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 Sepetmber 2004
      DOCKET NUMBER:  AR2004100832


      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. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Vanderholm           |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 first class/E-7 (SFC/E-7).

2.  The applicant states, in effect, that he satisfactorily served as a
SFC/E-7 on active duty and he requests that his rank and pay grade on the
Retired List be corrected to reflect the highest grade he held and in which
he served on active duty, which was SFC/E-7.

3.  The applicant provides copies of his 14 May 1976, 26 March 1972 and
28 March 1968 separation documents (DD Forms 214) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 May 1976.  The application submitted in this case was
received on 17 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 on 2 August 1972, he reenlisted in
the Regular Army after an almost five month break in service.  The
enlistment contract (DD Form 4) on file confirms he reentered active duty
as a
staff sergeant/E-6 (SSG/E-6 and had completed a total of 15 years, 3
months, and 25 days of active military service prior to the enlistment.  It
further shows that his last enlistment covered the period 29 March 1968
through 28 March 1972, at which time he was honorably discharged at the
expiration of his term of service (ETS).

4.  A separation document (DD Form 214) on file that documents the
applicant’s service between 29 March 1968 and 28 March 1972 shows he held
the rank and pay grade of SFC/E-7 on the date of his separation and that he
had served in that rank and pay grade since 20 June 1967.
5.  Letter Orders Number D4-497, dated 30 April 1976, issued by the United
States Army Military Personnel Center (MILPERCEN), directed the applicant’s
release from active duty (REFRAD) on 14 May 1976 and his placement on the
Temporary Disability Retired List (TDRL) on 15 May 1976, by reason of
physical disability.  These orders further authorized the applicant’s
placement on the TDRL in the rank and pay grade of SSG/E-6.

6.  On 14 May 1976, the applicant was REFRAD under the provisions of
paragraph 4-19e(2), Army Regulation 635-40 and Title 10 of the United
States Code, section 1202, by reason of physical disability.  The DD Form
214 he was issued at the time indicates he held the rank and pay grade of
SSG/E-6 at the time of his separation and that he had completed a total of
19 Years, 1 month, and 8 days of active military service.

7.  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 is
separated by reason of physical disability with severance pay, the
severance pay will be computed 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, including the TDRL; 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to a higher grade on the
Retired List was carefully considered and found to have merit.  By law, a
member retired by reason of physical disability is entitled to be placed on
the Retired List in the highest grade in which he served satisfactorily.

2.  The evidence of record confirms that the applicant was promoted to the
rank and pay grade of SFC/E-7 on 20 June 1967, while he was serving on
active duty. It further shows that he satisfactorily served on active duty
in that rank and pay until being honorably discharged on 28 March 1972.
3.  In view of the facts of this case, it would be appropriate to correct
the applicant’s record to show he was placed on the Retired List in the
rank and pay grade of SFC/E-7, the highest grade in which he served
satisfactorily, on 15 May 1976.  Further, it would serve the interest of
justice and equity to provide the applicant any back pay and allowances due
based on this correction to his retired rank and pay grade.

BOARD VOTE:

_JEV____  __JEA_ _  _LDS___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL 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
Temporary Disability Retired List in the rank and pay grade of sergeant
first class/E-7 on
15 May 1976; and by providing him any back pay and allowances due based on
this correction to his retired rank and pay grade.




            _     JAMES E. VICK______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100832                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1976/05/14                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Physical Disability-TDRL                |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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