IN THE CASE OF:	  

		BOARD DATE:	  	  12 November 2008

		DOCKET NUMBER:  AR20080014117 


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, correction of his Mandatory Retirement Date (MRD) based upon his 61-day period in a temporary disability status.

2.  The applicant states, in effect, he was mandatorily retired on 12 March 1972, in the grade of lieutenant colonel (LTC)/pay grade O-5, based upon completion of 28 years commissioned service.  Additionally, he states, in effect, that:

     a.  He recently discovered the law provided that, if the officer had been temporarily disabled during the 28-year period, then the 28-year period should be extended by the number of days the officer was in a temporary disability status.  He adds he was wounded in the Battle of the Bulge and spent 61 days in the hospital recovering from wounds.  As a result, his MRD should have been extended to May 1972.

     b.  He was being considered for promotion to colonel (COL)/pay grade O-6 during February/March 1972 and the Board was still in session on 12 March 1972.  He also states the Secretary of the Board contacted him by telephone and told him the only reason he could not be promoted was because his records had to be retired on his MRD, there was no waiver for the law, and he definitely was not passed over.  He further states his qualifications for promotion include being airborne qualified, a graduate of the Command and General Staff Officer Course, battle experience as an infantry officer, 17 years of command experience in both infantry and military intelligence, and 6 years as a staff officer and assistant to the Commandant, U.S. Army Reserve School.

3.  The applicant provides a copy of WD AGO Form Number 365 (Battle Casualty Report), dated 13 April 1945; WD AGO Form 53-98 (Record and Report of Separation - Certificate of Service), with an effective date of 23 May 1946;
DA Form 67-5 (U.S. Army Officer Efficiency Report) for the period 1 May 1967 to 30 April 1968; 3 DA Forms 67-6 (U.S. Army Officer Efficiency Reports) for the periods 1 May 1968 to 30 April 1969, 1 May 1969 to 30 April 1970, and 1 May 1970 to 30 April 1971; The Command and General Staff College Diploma, dated
14 August 1971; and DA Form 66 (Officer Qualification Record) reviewed on 
24 February 1967.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records show he enlisted in the Enlisted Reserve Corps on 13 June 1942, entered active duty in the Army of the United States on 20 September 1943, and attended infantry Officer Candidate School (OCS) at Fort Benning, Georgia.  He was appointed as a Reserve commissioned officer in the grade of second lieutenant, effective 11 February 1944, and served overseas in the European Theater of Operations (ETO) during World War II from 11 November 1944 to 10 August 1945.  The applicant was honorably released from active duty on 23 May 1946 and transferred to the Officer Reserve Corps (later designated the U.S. Army Reserve (USAR)).  The applicant continued to serve in the USAR, attained the rank of LTC (O-5), effective and with a date of rank (DOR) of 1 February 1967, and was honorably retired on his MRD of
12 March 1972.

3.  The applicant’s military service records contain a copy of Headquarters, First United States Army, Fort George G. Meade, Maryland, letter, dated 15 March 1972, subject:  Removal from an Active Status of the USAR.  This document shows the applicant was informed that on 11 February 1972 he completed a total of 28 years of service, which is the maximum prescribed for retention in an active status of the USAR for officers in his grade and, under regulations then in effect, his removal from an active status was mandatory, effective 12 March 1972.  This documentation also shows the applicant elected to transfer to the Retired Reserve.

4.  The applicant’s military service records contain a copy of Headquarters, First United States Army, Fort George G. Meade, Maryland, Special Orders Number 95, dated 4 April 1972, that show the applicant was assigned to the USAR Control Group (Retired), U.S. Army Administration Center, St. Louis, Missouri, effective 12 March 1972.

5.  The applicant’s military service records contain a copy of a DA Form 3713 (Data for Retired Pay), dated 27 April 1982.  Item 3 (Retired Grade) contains the entry “O-5,” Item 8 (Highest Grade Attained) contains the entry “O-5,” and Item 10 (Retired Pay Grade) contains the entry “O-5.”  This document also shows he was placed on the Retired List, effective 26 May 1982.

6.  In support of his application, the applicant provides the following documents:

     a.  WD AGO Form Number 365 (Battle Casualty Report), dated 13 April 1945, that shows the applicant was lightly wounded in action in the ETO on 24 January 1945.  The “Action by Processing and Verification Section, Date and Area” block of the AGO Form Number 365 contains the handwritten entry “24 Jan 45 – ETO,”  the “Date of Casualty” block contains the entry “27 Mar 45,” and the block for “Type of Casualty” contains the entry “RTD” (i.e., Returned to Duty).  

     b.  WD AGO Form 53-98, with an effective date of 23 May 1946, that shows the applicant entered active duty on 11 February 1944 and served in the ETO from 3 November 1944 to 21 August 1945.  Item 30 (Wounds Received in Action) contains the entry “Belgium 24 Jan 45” and Item 29 (Decorations and Citations) shows he was awarded the Purple Heart per Headquarters, 228th Station Hospital.

     c.  The 4 U.S. Army Officer Efficiency Reports (for the periods 1 May 1967 to 30 April 1968, 1 May 1968 to 30 April 1969, 1 May 1969 to 30 April 1970, and
1 May 1970 to 30 April 1971, in pertinent part, document that the authorized grade of the duty positions to which the applicant was assigned was "LTC" and that he completed the Command and General Staff Officer Course.

     d.  The Command and General Staff College Diploma, dated 14 August 1971, shows the applicant completed the requirements of the Command and General Staff Officer Course - Nonresident/Resident, by the U.S. Army Command and General Staff College, and was declared a graduate on 14 August 1971.

     e.  The DA Form 66 (Officer Qualification Record), reviewed by the applicant on 24 February 1967, provides a record of the applicant’s military service.  In pertinent part, Item 18 (Record of Assignments) shows the applicant was a patient at the 4112th U.S. Army Hospital, effective 1 February 1945, and Item
12 (Appointments) shows he was promoted to the grade of LTC (O-5), effective
1 February 1967.  Item 10 (Assignment Limitations) is absent an entry and Item 13 (Service Agreement) contains an entry showing a mandatory removal date of 10 March 1972.

7.  Army Regulation 600-8-6 (Personnel Accounting and Strength Reporting) provides information about reporting Soldiers’ duty status.  In pertinent part, it provides that duty status “Hospital" is used to describe Soldiers admitted to the hospital but not reassigned, who are wounded, sick, or injured, battle-incurred, and the abbreviation "RTD" is used to describe a Soldier "Returned to Duty."

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  Chapter 7 (Temporary Disability Retired List (TDRL)), paragraph 7-2 (Reasons for placement on the temporary disability retired list), in pertinent part, provides that a Soldier’s name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, United States Code, section 1201, but for the fact that his or her disability is determined not to be of a permanent nature and stable.

9.  Department of Defense (DoD) Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), subparagraph D (Other Creditable Service) includes, in pertinent part, “[s]ervice on a Military Service retired list, temporary disability retired list, or honorary retired list of any Uniformed Service, or service as a member of the Fleet Reserve or Fleet Marine Corps Reserve” as other creditable service.

10.  Title 10 (Armed Forces), United States Code (USC), section 14507 (Removal from the reserve active-status list for years of service:  reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy) provides, in pertinent part, that a commissioned officer who holds the grade of lieutenant colonel and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

11.  Title 10, USC, section 1370 (Commissioned officers:  general rule; exceptions), provides the rules for retirement in the highest grade held satisfactorily and states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show his MRD was extended 61 days to 13 May 1972, that he was promoted to the grade of COL (O-6), and placed on the retired list in the grade of COL (O-6) because he was in a temporary disability status for 61 days.

2.  The evidence of record shows the applicant was wounded in action in the ETO during World War II on 24 January 1945, hospitalized through 26 March 1945, and returned to duty on 27 March 1945.  This period equates to 62 days.  Moreover, the evidence of record shows the applicant’s duty status while he was hospitalized during this period is properly recorded in his military service records.

3.  There is no evidence of record that shows the applicant was found unfit for continued military service based on Army medical fitness standards during the period of service from 24 January 1945 through 26 March 1945 when he was hospitalized for wounds he received in action on 24 January 1945.  In addition, there is no evidence showing the applicant was evaluated by a medical/physical evaluation board and placed on the temporary disability retired list during the period of service under review.  Thus, there is insufficient evidence to support the applicant’s claim that his MRD should be extended to 13 May 1972 because he was in a temporary disability status.

4.  There is no evidence of record that shows the applicant was selected for promotion to the grade of COL (O-6), was promoted to the grade of COL (O-6), or that he satisfactorily held the grade of COL (O-6) for a period of not less than
6 months.  Therefore, the applicant is not entitled to correction of his records to show he was promoted to the grade of COL (O-6), retired in the grade of COL (O-6), or advanced on the retired list to the grade of COL (O-6).

5.  The sincerity of the applicant’s statements are not in question.  However, he provides insufficient evidence in support of his claim that he was in a temporary disability status for 61 days in 1945 and/or selected for promotion to the grade of COL (O-6) in 1972.  Therefore, the applicant is not entitled to the requested relief.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080014117



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ABCMR Record of Proceedings (cont)                                         AR20080014117



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