RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 July 2004
      DOCKET NUMBER:   AR2004100834


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 he be advanced to the rank and
grade of captain, O-3E (with over 4 years of enlisted service) on the
retired list.

2.  The applicant states that he should have been placed on the retired
list at the highest grade that he held satisfactorily while on active duty.
 He had reverted back to his enlisted status because his commission was for
five years although he had recommendations to remain on active duty as a
captain.

3.  The applicant provides his DD Form 214 (Certificate of Discharge or
Release from Active Duty) and his 1980 release from active duty orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 December 1980.  The application submitted in this case
is dated 23 February 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 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 had previous active duty in an enlisted status from 8
November 1950 through 24 March 1969.  He served on active duty in a
commissioned status from 25 March 1969 through 24 March 1974 at which time
he was apparently transferred to the U. S. Army Reserve Control Group in
the rank of captain.  On 25 March 1974, he enlisted in the Regular Army in
pay grade E-9.

4.  On 1 December 1980, the applicant retired from active duty, in the rank
and grade of Command Sergeant Major, E-9, after completing 30 years and 13
days of creditable active service.

5.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  In pertinent part, it states that
soldiers retired after completing 30 or more years of active service are
entitled to be advanced on the
retired list to the highest grade in which they satisfactorily served on
active duty.  For advancement to a commissioned officer grade, the soldier
must have served on active duty in the commissioned grade for not less than
6 months in accordance with Title 10, U. S. Code, section 1370.  It also
states that, for personal reasons, a soldier may not want to advance to a
higher grade.  In that case, the soldier must apply to the Secretary of the
Army within three months of advancement.

6.  Title 10, U. S. Code, section 1370(a)(1l) states that, unless entitled
to a higher retired grade under some other provision of law, a commissioned
officer (in a grade of major or below) shall be retired in the highest
grade in which he served on active duty satisfactorily for not less than
six months.

7.  The current base pay rate for an O-3E over 26 years is $5,241.30; the
current rate for an E-9 is $5,054.70.  The base pay rate at the time of the
applicant's retirement for an O-3E over 26 years was $2,016.90; the rate at
the time for an E-9 was $1,820.40.

DISCUSSION AND CONCLUSIONS:

1.  When the applicant retired on 1 December 1980 as an E-9 after
completing 30 years of active service, he had previously satisfactorily
served on active duty for over 6 months in the rank of captain.  He was
entitled to retire as a captain.  There is no evidence of record to show he
requested not to be advanced to the higher grade.  Considering the pay
scale, it appears the applicant may have been erroneously briefed
concerning his entitlement to retire in the higher grade.

2.  It would be equitable to show that the applicant retired on 1 December
1980 in the rank and grade of captain, O-3E.

BOARD VOTE:

__kan___  __gjw___  __wdp___  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 he retired on 1 December 1980 in the rank
and grade of captain, O-3E.




            __Kathleen A. Newman__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100834                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040708                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |129.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |