RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060014758


      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      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Joe R. Schroedor              |     |Member               |
|     |Mr. Chester A. Damian             |     |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 retired grade be changed
from staff sergeant/E-6 (SSG/E-6) to captain/0-3 (CPT/0-3).

2.  The applicant states, in effect, that the highest grade he held
satisfactorily while serving on active duty was CPT/0-3.  He states that he
served on active duty as a commissioned officer through 1990, at which time
he decided to separate for personal reasons and as a result of advice he
received at the time, he resigned his commission.  After his life had
stabilized, in 1997, he enlisted in the Army National Guard in the grade of
sergeant/E-5 (SGT/E-5), and he was later promoted to SSG/E-6.  He states
that he was deployed to Iraq, where he received the Purple Heart.  He was
reassigned to the medical holding company at Fort Campbell, Kentucky, and
in September 2006, he was medically discharged as a SSG/E-6.  He states
that he has an 80 percent disability from the Department of Veterans
Affairs (VA) and is now seeking to restore his highest rank held.

3.  The applicant provides the following documents in support of his
application:  CPT/0-3 Promotion Orders; first lieutenant (1LT) Promotion
Orders; second lieutenant (2LT) Appointment Orders; and Transfer to Army
National Guard (ARNG) Orders.

CONSIDERATION OF EVIDENCE:

1.  On 3 May 1985, the applicant was appointed a 2LT in the United States
Army Reserve (USAR), and on 2 June 1985, he entered active duty in that
status.  He was promoted to 1LT on 22 November 1986 and to CPT on 1 January
1990.

2.  On 1 May 1990, the applicant was honorably released from active duty
after completing 4 years and 11 months of active military service.  The
separation document (DD Form 214) he was issued confirms he held the rank
of CPT on the date of his separation and that he had attained that rank on
1 January 1990.

3.  The applicant served as a CPT in the USAR through 13 January 1997, at
which time he was honorably discharged in order to enlist in the ARNG in an
enlisted status.

4.  On 14 January 1997, the applicant enlisted in the ARNG, in the rank of
SGT, and on 4 March 2004, he was promoted to SSG.

5.  On 26 May 2004, while he was serving as a SGT in the Tennessee ARNG,
the applicant was ordered active duty, for a period not to exceed 545 days,
in support of Operation Iraqi Freedom, effective 17 June 2004.

6.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell,
Fort Campbell, Kentucky, Orders Number 208-0666. dated 27 July 2006,
directed the applicant's release from active duty because of physical
disability on 31 July 2006, and his placement on the Temporary Disability
Retired List (TDRL) on 1 August 2006, in the grade of SSG/E-6.  The DD Form
214 he was issued upon his release from active duty and placement on the
TDRL shows he was separated under the provisions of paragraph 4-24B(2),
Army Regulation 635-40, by reason of disability, temporary.  It also shows
he completed 2 years, 1 month and 14 days of active military service during
the period, 5 years, 2 months and
29 days of prior active military service, and 13 years, 9 months and 16
days of prior inactive military service, and that he held the grade of
SSG/E-6 on the date of his separation.

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, or whose name is placed on
the TDRL is entitled to the grade equivalent to the highest of the
following:  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;  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.  Section 1370
provides the rule for retirement in the highest grade held for commissioned
officers.  It states, in pertinent part, that a commissioned officers of
the Army who retires will be retired in the highest grade in which he
served on active duty satisfactorily for not less than six months.

8.  Section 1401 (Computation of Retired Pay) of Title 10 provides
computation formulas for retired pay.  Public Law 99-348 amended this
section of the law to add Section b (Use of Most Favorable Formula) which
states, in pertinent part, that if a person would otherwise be entitled to
retired pay computed under more than one formula or of any other provision
of law, the person is entitled to be paid under the applicable formula that
is most favorable to them.

9.  A member of the Army Grade Determination Review Board (AGDRB) staff
reviewed the applicant’s case and found the AGDRB lacked jurisdiction in
the case because a grade determination should have been completed on the
applicant at the time of separation and the AGDRB does not have the
authority to correct an error or injustice.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been placed on the TDRL
in the grade of CPT/0-3, the highest grade he held, was carefully
considered and found to have merit.

2.  By law, any member of an armed force who is retired for physical
disability, or whose name is placed on the TDRL, is entitled to be placed
on the Retired List in the highest grade in which he served satisfactorily.
 The evidence of record confirms the applicant was promoted to CPT on 1
January 1990, while serving on active duty, and that he served in that
grade both on active duty and in the USAR through 13 January 1997.
Therefore, it would be appropriate and serve the interest of justice to
correct the applicant's record to show he was placed on the TDRL in the
grade of CPT/03, and by providing him all back retired pay due as a result.


BOARD VOTE:

___ZDS _  __JRS __  __CAD__  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
Temporary Disability Retired List in the rank and pay grade of captain/0-3
on 1 August 2006; and by providing him any back pay and allowances due
based on this correction to his retired rank and pay grade.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060014758                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/05                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2006/07/31                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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