RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060013120 


	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.



	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 retired rank and pay grade of sergeant (SGT)/E-5 be advanced to his highest rank and pay grade attained on active duty, which was staff sergeant (SSG)/E-6. 

2.  The applicant essentially states that when he was retired due to permanent physical disability on 5 November 1990, he did not receive the benefit of an Army Grade Determination Review Board (AGDRB), and should have been placed on the Retired List in the rank and pay grade of SSG/E-6, which was the rank and pay grade that he possessed when he was released from active duty on 
29 April 1975.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) that was issued at the time of his release from active duty on 29 April 1975 and his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his retirement on 5 November 1990 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
5 November 1990, the date of his retirement from the Regular Army.  The application submitted in this case is dated 4 September 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.  The applicant’s military records show that he was honorably released from active duty at his expiration of term of service on 29 April 1975 in the rank and pay grade of SSG/E-6.  His date of rank to SSG was 25 January 1974, indicating that he successfully served in that rank.  

4.  On 1 October 1987, the applicant reenlisted in the Regular Army in the rank and pay grade of private first class/E-3.  He was eventually promoted to the rank and pay grade of SGT/E-5 on 1 April 1989.  However, on 5 November 1990, he was retired from the Regular Army due to permanent physical disability after completing a cumulative total of 8 years and 15 days of active military service.  The DD Form 214 that was issued to him at the time of his retirement confirms that he held the rank and pay grade of SGT/E-5 at his separation.

5.  The applicant essentially stated that he should have received the benefit of an AGDRB when he was retired due to permanent physical disability on 
5 November 1990, and that he should have been placed on the Retired List in the rank and grade of SSG/E-6, which was the rank and pay grade that he possessed when he was released from active duty on 29 April 1975.

6.  Paragraph 3-3 of Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) provides that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, title 10, United States Code.)  

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 any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: 

	a.  the grade in which he is serving on the date when his name is placed on the Retired List; 

	b.  the highest grade in which he served satisfactorily; or

	c.  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 contends that his retired rank/pay grade of SGT/E-5 should be advanced to his highest rank/pay grade attained on active duty, which was 
SSG/ E-6. 

2.  By law, members of the Armed Forces  being retired for disability are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served unless they are pending promotion to a higher grade.  The evidence of record confirms the applicant held and satisfactorily served on active duty in the rank and pay grade of SSG/E-6 from 25 January 1974 through 29 April 1975.  
3.  In light of the applicant’s over eight years of active military service, and his satisfactory service as a SSG/E-6 from 25 January 1974 to 29 April 1975, he should have been placed on the Retired List in that rank and pay grade at the time of his retirement due to permanent physical disability.  Thus, it would be appropriate and serve the interest of justice and equity to correct the applicant’s record to show he was placed on the Retired List in the rank and pay grade of SSG/E-6 on 5 November 1990, and by providing him any back retired pay due as a result.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 November 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
4 November 1993.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

___JA___  __JP____  __JM ___  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 Retired List in the rank and pay grade of SSG/E-6 on 5 November 1990, and by providing him any back retired pay due as a result.





____James Anderholm_______
          CHAIRPERSON


INDEX

CASE ID
AR20060013120
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070626
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
129.0400.0000
2.

3.

4.

5.

6.