IN THE CASE OF:
BOARD DATE: 18 February 2010
DOCKET NUMBER: AR20090014777
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 rank be corrected to show specialist four/E-4 on the orders placing him on the Temporary Disability Retired List (TDRL) and removing him from the TDRL.
2. The applicant states, in effect, that his rank was E-4 when he was placed on the TDRL; however, he was paid as an E-3.
3. The applicant provides two applications and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of 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 applicant enlisted in the Regular Army on 25 November 1980 and served as a tactical wire operations specialist.
3. Orders, dated 1 June 1983, show the applicant was promoted to specialist four.
4. U.S. Army Military Personnel Center Orders D106-10, dated 1 June 1983, show the applicant was placed on the TDRL effective 16 June 1983 in the rank of private first class/E-3.
5. U.S. Army Military Personnel Center Orders D150-3, dated 8 August 1985, show the applicant was removed from the TDRL effective 22 August 1985 and permanently retired with a disability rating of 30 percent. His rank is shown as private first class/E-3.
DISCUSSION AND CONCLUSIONS:
The evidence of record supports the applicant's contention that his rank was E-4 when he was placed on the TDRL. Promotion orders show he was promoted to E-4 effective 1 June 1983. Therefore, it would be appropriate to correct his rank to show specialist four/E-4 on the orders placing him on the TDRL effective
16 June 1983 and removing him from the TDRL effective 22 August 1985. In addition, he is entitled to back retired pay.
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. showing his retired grade as specialist four/E-4 on U.S. Army Military Personnel Center Orders D106-10, dated 1 June 1983, and on U.S. Army Military Personnel Center Orders D150-3, dated 8 August 1985; and
b. paying to him any and all back retired pay due as a result of these corrections.
_______ _ _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) AR20090014777
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ABCMR Record of Proceedings (cont) AR20090014777
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