RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060011611


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. 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 his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show his rank and
grade as Staff Sergeant (SSG), E-6.

2.  The applicant states, in effect, that his DD Form 214 shows his rank
and grade as Sergeant (SGT), E-5.  He retired as an E-6.

3.  The applicant provides a Standard Form 180 (Request Pertaining to
Military Records).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 October 1990.  The application submitted in this case
is dated     8 August 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.  After having had prior service in the Regular Air Force, the applicant
enlisted in the Regular Army on 31 March 1975.  He was promoted to SSG, E-6
on           3 June 1983.

4.  On 1 March 1989, the applicant was convicted by a special court-martial
of being drunk and disorderly on 14 August 1988.  His approved sentence was
a forfeiture of $175.00 pay for three months.

5.  On or about 27 April 1989, a local bar to reenlistment on the applicant
was approved.  The bar to reenlistment certificate indicated, in part, that
he was given a field grade Article 15 on 10 November 1986 for disrespect
toward a senior noncommissioned officer (and for which punishment included
a suspended reduction to E-5).  It also indicated that he was counseled
numerous times beginning in April 1986 for offenses such as misconduct
reported by supervisors, injury not in the line of duty due to own
misconduct, assault during domestic altercations, failure to repair,
failure to manage checkbook, and alcohol rehabilitation failure.

6.  On 24 May 1990, the applicant was convicted by a special court-martial
of indecent assault upon another Soldier.  His approved sentence was a
reduction to E-5 and restriction for 45 days.  The convening authority
approved the sentence on 3 August 1990.

7.  The applicant was referred to the Physical Disability Processing System
on an unknown date.  Based upon a 5 June 1990 referral for a psychiatric
evaluation, physical disability processing apparently started prior to his
May 1990 court-martial.

8.  On 29 August 1990, a Physical Evaluation Board (PEB) found the
applicant to be unfit due to limitation of motion of the right elbow; right
ulnar neuritis with paresthesias and diminished grip strength; and right
dorsal wrist pain.  The PEB recommended he be permanently retired for
disability.  On 31 August 1990, the applicant concurred with the findings
and recommendation of the PEB.

9.  U. S. Total Army Personnel Command Orders D182-4, dated 14 September
1990, indicated in the standard name line that the applicant’s rank was
SSG, that he was retired effective 5 October 1990, and that he was placed
on the retired list 6 October 1990 in the rank of SSG.  These orders were
corrected on an unknown date to show he was retired effective 10 October
1990 and placed on the retired list 11 October 1990.  These orders were
corrected again to show he was retired effective 31 October 1990 and placed
on the retired list 1 November 1990.

10.  U. S. Total Army Personnel Command Orders D212-6, dated 25 October
1990, amended Orders D182-4 to show the applicant’s rank in the standard
name line as SGT and to show his retired grade as SGT.

11.  U. S. Army White Sands Missile Range Orders 159-7, dated 31 October
1990, released the applicant from assignment and duty effective 31 October
1990 and placed him on the retired list 1 November 1990 in the rank and
grade of SGT, E-5.  His rank was shown as SGT in the standard name line.

12.  On 31 October 1990, the applicant was released from active duty for
the purpose of a physical disability retirement after completing 19 years,
3 months, and 11 days of active duty.  His DD Form 214 for the period
ending 31 October 1990 shows his rank and grade as SGT, E-5 with a date of
rank of 3 August 1990.  The Army apparently failed to conduct a grade
determination prior to his retirement.
13.  On 27 February 2007, the Defense Finance and Accounting Service (DFAS)
informed the Board analyst that the applicant has been paid retired pay as
an E-6 since 1 November 1990.

14.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge or release from active military
service.  It establishes standardized policy for the preparation and
distribution of DD Form 214.  The DD Form 214 is a synopsis of the
Soldier’s most recent period of continuous active duty.  It provides a
brief, clear-cut record of active Army service at the time of release from
active duty, retirement or discharge.

15.  U. S. Code, Title 10, section 1372, provides that any member retired
for physical disability or whose name is placed on the TDRL is entitled to
the grade equivalent to the highest grade or rank in which he served
satisfactorily as determined by the Secretary of the armed force from which
he is retired.  This provision requires the Army to conduct a grade
determination prior to separating a Soldier with a disability retirement.

16.  Title 10, U. S. Code, section 3964 states an enlisted member of the
Regular Army is entitled, when his active service plus his service on the
retired list totals 30 years, to be advanced on the retired list to the
highest grade in which he served satisfactorily on active duty.

DISCUSSION AND CONCLUSIONS:

1.  There is no error on the applicant’s DD Form 214 for the period ending
       31 October 1990.  The evidence of record shows he had been reduced
to SGT, E-5 as a result of a court-martial sentence that was approved on 3
August 1990.  The DD Form 214 is meant to be a brief record of active Army
service at the time of release from active duty, retirement or discharge.
On 31 October 1990, the date of the applicant’s release from active duty
for the purpose of physical disability retirement, he was a SGT, E-5.

2.  The applicant’s original retirement orders indicated his rank and grade
as SSG, E-6 and that he would be placed on the retired list as an SSG, E-6.
 However, those orders were amended on 25 October 1990 to show his rank in
the standard name line as SGT and to show his retired grade as SGT.  In
addition, the orders dated 31 October 1990, which released the applicant
from assignment and duty effective 31 October 1990 and placed him on the
retired list 1 November 1990, showed his rank as SGT in the standard name
line and that he would be placed on the retired list in the rank and grade
of SGT, E-5.

3.  It appears DFAS never received the applicant’s amended orders showing
he would be placed on the retired list in the rank and grade of SGT, E-5.

4.  The applicant was entitled to be placed on the retired list in the
grade equivalent to the highest grade or rank in which he served
satisfactorily and he should have been afforded the opportunity to have his
records reviewed by the Army Grade Determination Review Board to determine
that grade.  It appears he was not afforded that opportunity at the time.

5.  The applicant was promoted to SSG in June 1983 and served in that rank
for seven years.  However, beginning in March 1986, the evidence of record
reveals a history of misconduct that included a field grade Article 15 on
10 November 1986 for disrespect toward a senior noncommissioned officer, an
injury not in the line of duty due to own misconduct, assault during
domestic altercations; failure to repair, failure to manage checkbook, and
alcohol rehabilitation failure.

6.  Based upon the applicant’s record of misconduct after he was promoted
to SSG, it does not appear that he met the requirement to have
satisfactorily served on active duty in the rank of SSG that would entitle
him to be placed on the retired list as an SSG, E-6.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1990; therefore, the time
for   the applicant to file a request for correction of any error or
injustice expired on   30 October 1993.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wfc___  __eem___  __rmn___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __William F. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011611                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070308                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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