RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 November 2007
DOCKET NUMBER: AR20070009677
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.
Ms. Catherine C. Mitrano
Director
Mrs. Nancy L. Amos
Analyst
The following members, a quorum, were present:
Mr. John T. Meixell
Chairperson
Ms. Jeanette R. McCants
Member
Mr. Scott W. Faught
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, as the widow of a former service member (FSM), requests that the FSMs records be corrected to show he was promoted to and retired in the rank and grade of colonel (COL), O-6.
2. The applicant states that the FSM was forced to retire due to his disability. He would have achieved the rank of COL otherwise.
3. The applicant provides a self-authored letter; the FSMs DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 September 1988; and the FSMs death certificate.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After having had prior enlisted service, the FSM accepted a commission in the Army National Guard. He transferred to the U. S. Army Reserve around January 1966. He was promoted to lieutenant colonel (LTC), O-5 on 14 September 1979.
3. On 20 January 1983, the FSM entered active duty in an Active Guard Reserve status.
4. By letter dated 24 September 1984, the FSM was notified that he had been considered but not selected for promotion to COL. There is no evidence of record to show he was later selected for promotion to COL.
5. On 14 April 1988, a physical evaluation board found the FSM to be unfit for retention due to insulin-dependent diabetes mellitus, intervertebral disc syndrome with degenerative joint disease, and mild coronary artery disease and recommended he be medically retired with a 30 percent disability rating.
6. On 19 September 1988, the applicant was released from active duty due to physical disability and placed on the retired list on 20 September 1988 in the rank of LTC, O-5.
7. The FSM died on 2 May 2006.
8. Title 10, U. S. Code, section 1372 states 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:
(1) the grade or rank in which he is serving on the date when his name is placed on the TDRL or the date he is retired;
(2) the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired;
(3) the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or
(4) the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the FSM would have achieved the rank of COL if he had not been retired for disability is understood, and it is possible that he could have been selected for promotion had he been able to remain on active duty.
2. The first two provisions of the applicable law state that a member who is retired for physical disability is entitled to the grade or rank in which he is serving on the date he is retired or the highest temporary grade or rank in which he served satisfactorily. The evidence of record shows, and the applicant acknowledges, that the FSM had never been promoted to COL. Therefore, he was properly retired in the rank of LTC.
3. Had the FSM been selected for promotion to COL but retired before he could actually be promoted, he would have been eligible for placement on the retired list in the rank of COL under the remaining two provisions of the law.
4. Unfortunately, the evidence of record fails to show that the FSM had been selected for promotion to COL prior to his retirement.
5. Regrettably, there is insufficient evidence that would warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__jtm___ __jrm___ __swf___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___John T. Meixell____
CHAIRPERSON
INDEX
CASE ID
AR20070009677
SUFFIX
RECON
DATE BOARDED
20071129
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES 1.
131.00
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3.
4.
5.
6.
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