IN THE CASE OF:
BOARD DATE: 20 November 2008
DOCKET NUMBER: AR20080012154
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, in effect, that his retirement orders be corrected to show the rank and pay grade of Specialist (SPC)/E-4. He also requests all promotion back pay and allowances effective 25 September 1992.
2. The applicant states, in effect, that he was medically retired and his retirement orders do not reflect his correct rank.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 24 September 1992.
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. The applicant enlisted in the Regular Army on 29 May 1990 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11C (Indirect Fire Infantryman).
3. A DA Form 4187, dated 10 April 1991, shows that the applicant was advanced to the rank and pay grade of Private First Class (PFC)/E-3 with an effective date of 29 May 1991.
4. A DA Form 4187, dated 29 June 1992, shows he was advanced to the rank and pay grade of SPC/E-4 with an effective date of promotion of 29 July 1992. There is no evidence of any adverse information or that he was later reduced.
5. On 24 September 1992, the applicant was retired and was placed on the temporary disability retired list (TDRL) on 25 September 1992.
6. The applicants DD Form 214 with the period ending 24 September 1992 shows in item 4a (Grade, Rate, or Rank) the rank of SPC. Item 4b (Pay Grade) shows the pay grade of E-4. Item 12h (Effective Date of Pay Grade) shows the entry "910529."
7. U.S. Total Army Personnel Command (PERSCOM) Orders D168-3, dated
25 August 1992, show that the applicant was placed on the TDRL effective
25 September 1992, in the retired grade and rank of PFC.
8. PERSCOM Orders D74-8, dated 8 April 1996, show the applicant was removed from the TDRL with a disability rating of 40 percent and permanently retired. The standard name line on these orders shows his rank as SPC.
9. On 2 September 2008, Defense Finance and Accounting Service (DFAS) confirmed that the applicant was receiving retired pay at the rank and pay grade of PFC/E-3.
DISCUSSION AND CONCLUSIONS:
1. The DA Form 4187, dated 30 June 1992, shows the applicant was advanced to the pay grade of E-4 prior to separation and being placed on the TDRL. Therefore, item 12h of his DD Form 214 with the ending period 24 September 1992 should be corrected to show his effective date of pay grade as 29 July 1992. His DD Form 214 correctly shows his rank and grade as SPC/E-4; however, item 12h incorrectly shows his PFC effective date of promotion.
2. DFAS confirmed that the applicant was receiving retired pay at the rank and pay grade of PFC/E-3. However, based on the above evidence that shows the applicant was advanced to the pay grade of E-4, PERSCOM Orders D168-3, dated 25 August 1992, should be amended to show his retired grade and rank as SPC/E-4, with entitlement to back pay and allowances.
BOARD VOTE:
___X_____ _____X___ _____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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. deleting the entry in item 12h of his DD Form 214;
b. amending his DD Form 214 in item 12h to add 29 July 1992;
c. amending PERSCOM Orders D168-3, dated 25 August 1992, to read Retired grade of rank: "SPC"; and
d. paying him all back pay and allowances due as a result of these corrections.
_______ XXX_ _______ ___
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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