BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019611 


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 advancement on the Retired List.

2.  He states:

* his Army dream was to move up in the ranks
* his unit was ambushed in Vietnam and both of his legs were wounded
* the Army retired him and he couldn't fulfill his dream
* he wants to be advanced on the Retired List so he can have a higher rank on his tombstone in Arlington

3.  He provides:

* newspaper article about advancement on the Retired List
* retirement orders
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* DD Form 215 (Correction to DD Form 214)
* Associate in Applied Science and Bachelor of Arts degrees

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 was inducted into the Army of the United States on 19 February 1969.

3.  His DA Form 20 (Enlisted Qualification Record) shows:

* item 31 (Foreign Service) – he served in Vietnam from 4 August 1969 to 26 February 1970
* item 33 (Appointments and Reductions) – he was promoted to specialist four (SP4)/E-4 on 31 December 1969
* item 40 (Wounds) – he sustained gunshot wounds on 10 December 1969

4.  Special Orders Number 212, dated 30 October 1970, show he was determined to be unfit for duty by reason of physical disability.  He was released from assignment and duty on 5 November 1970 and placed on the Temporary Disability Retired List (TDRL) in the grade of SP4.

5.  He was retired on 6 November 1970 by reason of temporary physical disability.  His DD Form 214 shows his rank and pay grade as SP4/E-4.

6.  His service record doesn't indicate he was promoted above the rank of SP4 during his tenure on active duty.

7.  Letter Orders Number D 9-93, dated 5 September 1972, show he was removed from the TDRL on 30 September 1972.  He was permanently retired in the rank of SP4 on the following day.

8.  Title 10, U.S. 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 TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired;
	b.  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;

	c.  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; or

	d.  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.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

10.  Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements in regard to his advancement on the Retired List are acknowledged; however, the evidence of record does not indicate that an error or injustice exists in this case.

2.  His service record shows he was promoted to SP4 on 31 December 1969, after he was hospitalized.  There is no evidence to show and he was promoted after that date or that he had been recommended for promotion after that date.  He was released retired on 6 November 1970 by reason of physical disability and placed on the TDRL in the rank of SP4/E-4.

3.  By law, he was placed on the TDRL in the highest grade he satisfactorily served.  Therefore, regrettably, there is no basis for advancing him on the Retired List.

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 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 him 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)                                         AR20100019611



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ABCMR Record of Proceedings (cont)                                         AR20100019611



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