IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018511 


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 amendment of item 3a (Grade, Rate, or Rank) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his pay grade as specialist four (SP4).

2.  The applicant states that his AGPZ Form 977 (Data for Retired Pay), item 2 (Retired Grade), shows SP4.  He would like his DD Form 214 corrected to reflect his latest rank.

3.  In support of his application, the applicant provides copies of his DD Form 214, a letter from the Department of the Army, his AGPZ Form 977, and AGPZ Form 722 (Extract of Special Orders).

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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  His available military records show he was inducted into the Army of the United States in pay grade E-1 on 5 August 1964.  He was honorably released from active duty on 9 September 1966 and placed on the Temporary Disability Retired List (TDRL).  He was issued a DD Form 214 that shows his rank as private first class (PFC) (E-3) (Permanent) in item 3a and the date of rank of 6 May 1965 in item 3b (Date of Rank).

4.  He submitted a copy of a letter from the Department of the Army Office of the Adjutant General, dated 11 July 1969, wherein he was advised of his removal from the TDRL and permanent retirement in the grade of SP4 on 31 August 1969.

5.  He also submitted a copy of an AGPZ Form 977, dated 11 July 1969, showing his retired grade as SP4 in accordance with Title 10, U.S. Code, section 1372.  He further submitted a copy of an AGPZ Form 722, dated 11 July 1969, showing he would be awarded a permanent disability rating of 60 percent and would be removed from the TDRL on 31 July 1969.

6.  Title 10, U.S. Code, section 1372, specifies that any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL 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 his name in placed on the TDRL or on the date when he is retired, (2) the highest temporary grade in which he served satisfactorily from which he retired, (3) the permanent regular grade to which he would have been promoted had it not been for the physical disability for which he is retired, or (4) the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was released from active duty and placed on the TDRL on 9 September 1966.  He was issued a DD Form 214 showing his grade as PFC with an effective date of 6 May 1965.  On 11 July 1969, he was advised that his retired grade would be SP4 in accordance with Title 10, U.S. Code, section 1372.  He was removed from the TDRL effective 31 July 1969 and permanently retired in 1 August 1969.

2.  There is no evidence to confirm he was promoted to pay grade E-4 prior to 9 September 1966 and available military records do not contain a copy of his retirement orders showing his highest grade held.  The available evidence shows he held the grade of PFC on the date of his release from active duty and transfer to the TDRL on 9 September 1966.  Therefore, he is not entitled to an amendment of item 3 of his DD Form 214 to show the grade of SP4.

3.  In 1969, he was advised of his removal from the TDRL in the retired grade of SP4.  Although there is no evidence to show he was promoted to SP4 or would have been promoted had it not been for the physical disability for which he was retired, it may be presumed that he was promoted to SP4 in accordance with Title 10, U.S. Code, section 1372.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _  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)                                         AR20090018511



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ABCMR Record of Proceedings (cont)                                         AR20090018511



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