IN THE CASE OF:
BOARD DATE: 5 August 2008
DOCKET NUMBER: AR20080009783
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his military records to show his retired pay grade as E-4.
2. The applicant states, in effect, that he retired in the pay grade of E-4 but the Defense Finance and Accounting Service (DFAS) is showing his retired pay grade as E-3.
3. The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).
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. On 3 January 1967, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and the Basic Airborne Course. He was awarded military occupational specialty 11B1P (Light Weapons Infantryman with parachutist qualification).
3. On 5 July 1967, the applicant was assigned duty as a rifleman with the
2nd Battalion, 327th Infantry Regiment, in the Republic of Vietnam.
4. On 22 November 1967, the applicant was medically evacuated from the Republic of Vietnam.
5. On 15 January 1968, the applicant was promoted to specialist four, pay grade E-4. The applicant's Enlisted Qualification Record (DA Form 20) shows in Item 33 (Appointments and Reductions) that he was promoted to Specialist Four, E-4 on Special Orders 10, paragraph 33, Valley Forge General Hospital, dated 1968.
6. Special Orders Number 65, paragraph 271, Headquarters, Department of the Army, dated 2 April 1968, directed the retirement of the applicant due to physical disability. The order shows his rank and pay grade as private first class, E-3.
7. On 2 April 1968, a Data for Retired Pay (AGPZ Form 977) was completed indicating that the applicant was permanently disabled. It further indicates that the highest grade he attained was E-3, and showed E-3 as his retied pay grade.
8. On 9 April 1968, the applicant was released from active duty and transferred to the Retired Reserve due to a permanent disability, effective 10 April 1968. Item 5a (Grade) of his DD Form 214 shows his pay grade as E-4. His date of rank to specialist is shown as 15 January 1968.
9. On 16 May 1979, the applicant was issued an United States Uniformed Services Identification Card (DD Form 2A, Retired), effective 10 April 1968, showing his rank and retired pay grade as specialist four, E-4.
10. A DFAS Statement (DFAS-CL 7220/148), effective 2 December 2004, shows the applicant's rank as private first class [pay grade E-3].
11. In a letter dated 25 April 2008, the Director, DFAS Cleveland, wrote that the applicant's military pay account cannot be corrected without orders from the [United States] Army. It further extended an apology to the applicant for the poor customer service rendered to him by the DFAS.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows that the applicant was retired on
10 April 1968, in the rank and pay grade of specialist four, E-4, due to a permanent physical disability. Furthermore, the evidence clearly shows that the applicant's retirement orders reflected an incorrect rank and pay grade; therefore, the Data for Retired Pay form was incorrectly completed showing his highest pay grade held and his retired pay grade as E-3.
2. In view of the above, the applicant's request should be granted.
BOARD VOTE:
___X ___ ___X____ ___X___ 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. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. amending Special Orders Number 65, paragraph 271, dated 2 April 1968 to show his rank as specialist four and his pay grade as E-4 and that he was retired in the pay grade of E-4 effective 10 April 1968; and
b. paying him any and all monies due as a result of this correction.
_______ _ X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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