IN THE CASE OF:
BOARD DATE: 16 October 2008
DOCKET NUMBER: AR20080012372
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 that his separation document, DD Form 214, be corrected to add his Air Medal and to show his rank as SP4, pay grade E-4.
2. The applicant states that he has documentation to prove he was awarded the Air Medal and to show he was a SP4, pay grade E-4.
3. The applicant provides documents which he lists on his application.
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 applicants military records show that he was inducted and entered active duty on 2 April 1968. He was awarded the military occupational specialty of light weapons infantryman and was promoted to pay grade E-4.
3. While serving in Vietnam, on 5 June 1969 the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to go at the time prescribed to his appointed place of duty. His punishment included a reduction from pay grade E-4 to pay grade E-3.
4. The applicant was honorably released from active duty on 9 December 1969 due to physical unfitness and placed on the Retired List the following day.
5. The DD Form 214 issued to the applicant shows his rank as PFC (private first class), pay grade E-3, and it does not show the applicants Air Medal.
6. In conjunction with the applicants placement on the Retired List, a grade determination was made. It was determined that he should be placed on the Retired List in the rank of SP4, pay grade E-4. Accordingly, on 24 April 1972 his retirement orders were amended.
7. On 4 April 2005, the applicants DD Form 214 was amended by adding the Air Medal and the applicant was issued a DD Form 215 (Correction to the DD Form 214) to show this correction. Therefore, this issue will not be further discussed in the Record of Proceedings.
8. Army Regulation 635-5 states that a soldier is separated from active duty in the rank held on the date of separation.
9. Title 10, United States Code, section 1372, states that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, 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 temporary disability retired list or, if his name was not carried on that list, on the date when 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.
(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 applicant was reduced from pay grade E-4 to pay grade E-3. As such, his DD Form 214 correctly shows the pay grade and rank he held at the time of his separation; PFC, pay grade E-3.
2. While a grade determination was made that the applicant warranted placement on the Retired List in pay grade E-4, this does not affect his grade or rank on the date of his separation.
3. In view of the foregoing, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ___X____ ___X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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.
ABCMR Record of Proceedings (cont) AR20080012372
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ABCMR Record of Proceedings (cont) AR20080012372
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