RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2005
      DOCKET NUMBER:  AR2004105998


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 he be promoted to sergeant/E-5
(SGT/E-5).

2.  The applicant states he was selected for promotion to SGT by a
promotion board and placed on the promotion standing list; however, he was
medically retired prior to being promoted.

3.  The applicant provides copies of promotion board documents in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
that occurred on 23 September 1982.  The application submitted in this case
was received on 29 March 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 served on active duty in the
United States Marine Corps for 3 years, from 5 October 1977 through 4
October 1980.  He enlisted in the Regular Army and entered active duty on 6
January 1981.  He was trained in and awarded military occupational
specialty (MOS) 13B (Cannon Crewman).

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 corporal/E-4 (CPL/E-4) on 25 February 1982.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
copy of Report of Promotion Board Proceedings, dated 3 March 1982, which
confirms the applicant was recommended for promotion to SGT/E-5 in MOS 13B
and that his promotion point total was 728 points.  The MPRJ also contains
a copy of a promotion standing list, dated 3 March 1982, that confirms he
was on the  SGT/E-5 promotion standing list in MOS 13B.

6.  Orders Number D176-20, dated 9 September 1982, issued by the United
States Army Military Personnel Center (MILPERCEN), directed the applicant’s
release from active duty (REFRAD) because of a physical disability on
23 September 1982 and his placement on the Temporary Disability Retired
List (TDRL) on 24 September 1982.  These orders further authorized the
applicant’s placement on the TDRL in the rank and pay grade of specialist
four/E-4
(SP4/E-4) .

7.  On  23 September 1982, the applicant was REFRAD under the provisions of
paragraph 4-24e(1), Army Regulation 635-40, by reason of physical
disability-temporary.  The DD Form 214 he was issued at the time indicates
he held the rank and pay grade of SP4/E-4 at the time of his separation and
that he had completed a total of 4 years, 8 months and 17 days of active
military service.

8.  Orders Number D6-7, dated 10 January 1984, directed the applicant’s
removal from the TDRL, by reason of permanent disability on 25 January 1984
and that he be permanently retired on the following day.

9.  Title 10 of the United States Code, section 1372 (10 USC 1372), as
amended in 1996, 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, which includes 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.

10.  At the time of the applicant’s disability entitlement, 10 USC 1372
also required that the physical disability be found to exist as a result of
a physical examination for promotion.  The 1996 amendment deleted the words
“for promotion” in recognition of the fact the service had not required
promotion physicals for a number of years and the words had been ignored as
a practical matter for disability grade determinations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that he be promoted to SGT/E-5 based on his
promotion list standing was carefully considered and found to have merit.
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
placement on the TDRL was discovered.
2.  The evidence of record further confirms the applicant had been selected
for promotion to SGT/E-5 prior to being processed for retirement by reason
of physical disability.  Currently by law and regulation and previously by
common practice, 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 as a matter of equity
should have been placed on the TDRL 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:

__BPI___  __LCB___  __DRT__  GRANT 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/E-5
on
23 September 1982; and by providing him any back pay and allowances due
based on this correction to his retired rank and pay grade.




            ____Bernard P. Ingold_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105998                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1982/09/23                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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