RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 AUGUST 2006
      DOCKET NUMBER:  AR20050015168


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dean Camarella                |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 advanced to the rank and
pay grade of captain/O-3 (CPT/O-3) on the retired list.

2.  The applicant states he was placed on the retired list as a Chief
Warrant Office 3 (CW3) and states he should have been retired in the grade
of captain due to his permanent disability retirement.  He states he was
commissioned as a second lieutenant in May 1977 and was discharged on 1
September 1988 in the grade of captain.  The day following his discharge he
reentered active duty as a warrant officer.

3.  The applicant states he attempted to correct the error via the Army
Grade Determination Board and was informed that he was entitled to a grade
determination at the time of his disability retirement but now required
action by this Board.

4.  The applicant provides extracts from his Official Military Personnel
File, correspondence from the Army Grade Determination Board, and a copy of
a case which was previously approved by the Board which the applicant state
is identical to his situation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 November 1997.  The application submitted in this case
is dated 20 April 2006.

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 limitations 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.  Records available to the Board indicate the applicant initially served
on active duty as an enlisted Soldier between 1973 and 1975.  In 1977 the
applicant entered active duty as a commissioned officer following
completion of an ROTC (Reserve Officer Training Corps) program.  He was
promoted to captain in April 1981.
4.  In February 1988 the applicant was notified that he would be discharged
for failing to be selected for promotion as a Regular Army officer.  The
notification document indicated that established strength ceiling limited
the proportion of eligible officers that could be selected for promotion
and that unfortunately many highly qualified officers could not be
promoted.

5.  The applicant’s file contains no derogatory information and his
performance evaluation reports for duties performed in the grade of captain
were all complimentary.

6.  On 1 September 1988 the applicant was discharge from the Army in the
rank of captain as a result of his failure to be selected for promotion.
The following day, on 2 September 1988, the applicant was appointed as a
CW3 and returned to active duty in that capacity.

7.  On 18 November 1997 the applicant, following a Physical Evaluation
Board was retired by reason of physical disability.  His name was placed on
the retired rolls in the rank of CW3 and his retired pay calculated on that
grade.

8.  Title 10 of the United States Code, Section 1201 (10 USC 1201),
provides the legal authority for the retirement of a member for physical
disability.  It states that a member may be retired under this provision of
law, upon a determination by the Secretary concerned, that they are unfit
to perform the duties of their office, grade, rank, or rating because of
physical disability incurred while entitled to basic pay.  Section 1401 (10
USC 1401) provides guidance on the computation of retired pay.  It states,
in pertinent part, that a Warrant Officer retiring for physical disability
is entitled to the use of the most favorable formula for retired pay.  That
is, if a member otherwise would be entitled to have their retired pay
computed under more than one formula or provision of law, the person is
entitled to be paid under the applicable formula that is most favorable to
them.

9.  Title 10 of the United States Code, Section 1372 (10 USC 1372),
provides the legal authority for the grade to which a member is entitled to
be placed on the retired list upon retirement for physical disability.  It
states, in pertinent part, that a member should be retired in the grade or
rank in which they are serving on the date of their retirement, or the
highest temporary grade or rank in which they served satisfactorily, as
determined by the Secretary of the armed force from which they are retired.




10.  On 13 April 2006, the Army Grade Determination Board, in responding to
the applicant’s request for advancement on the retired list, determined
that they did not have jurisdiction in the case.  They found that because
the applicant had retired due to physical disability, he was therefore
eligible for a grade determination at the time of his retirement and if his
commissioned service was determined to be satisfactory he should have been
retired in the rank and pay grade of CPT/O-3.

DISCUSSION AND CONCLUSIONS:

1.  The finding of the Army Grade Determination Board concluded that the
applicant was entitled to a grade determination at the time of his
retirement.  Further, the evidence of record shows that his active duty
service in the rank and pay grade of CPT/O-3 was satisfactory.  Therefore,
the applicant should have been placed on the retired list in the highest
rank in which he satisfactorily served, which in this case is CPT/O-3.

2.  Under the provisions of 10 USC 1401, the applicant was entitled to have
his retired pay computed under the formula most favorable to him at the
time of his retirement.  This should have resulted in his retired pay being
computed at both the CW3/W-3 and CPT/O-3 rates and in his receiving retired
pay based on the pay rate most favorable to him at the time of his
retirement.

3.  Given the provisions of the law outlined in the preceding two
paragraphs, the applicant’s rank on the retired list should be CPT based on
his satisfactory active duty service in that grade.  In addition, he is
entitled to receive retired pay in either the rank and pay grade of CW3/W-3
or CPT/O-3, based on whichever pay rate is most favorable to him.

4.  It would be appropriate to provide the applicant any back pay and
allowances due, from the date of his retirement, if he is entitled to
higher retired pay as a result of computing his retired pay using the
formula most favorable to him, as provided by law (10 USC 1401).

5.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.






BOARD VOTE:

__RD ___  ___DC __  ___RN __  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:

      a.  changing the rank of the individual concerned on the retired list
to CPT;

      b.  computing his retired pay in the rank and pay grades of CW3/W-3
and CPT/O-3, and that he be provided the retired pay rate based on the most
favorable formula to him; and


      c.  that if the most favorable pay formula computation results in an
increase in the retired pay of the individual concerned, he be provided all
back pay and allowances due since the date of his retirement.




                            _____ Richard Dunbar________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015168                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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