IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100021149 


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 correction of his record to show he was retired in the rank/grade of lieutenant colonel (LTC)/O-5 instead of major (MAJ)/O-4.

2.  The applicant states that at the time of his disabling accident he was assigned to an Active Guard Reserve (AGR) position as the executive officer of a signal command which was an LTC position.  On 14 November 1986 he was placed on the Temporary Disability Retired List (TDRL) and he was sent home to convalesce for 5 years and he was never promoted to LTC.  He further states that he should have been promoted to the pay grade of LTC on 11 June 1986 and then placed on the TDRL.  He also states that he was not aware he should have been promoted until he discovered a regulation which provides instructions to medical evaluation boards that state that Soldiers who are on a promotion list are to be retired at the next higher grade.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his TDRL orders
* his LTC promotion letter
* a medical evaluation board training guide from Darnall Army Medical Center, Fort Hood, TX


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 serving as a U.S. Army Reserve (USAR) major when he was ordered to active duty as an AGR officer in a USAR Signal Group in East Point, GA on 9 May 1983 for a period of 4 years.  He was initially assigned to an executive officer position and on 26 June 1984 he was injured in a motor vehicle accident.

3.  On 14 December 1984 he was assigned to a plans and training officer position and on 1 August 1985 he was assigned to a plans officer position.

4.  On 25 November 1985 a letter was dispatched through the applicant’s commander to the applicant informing him that he had been selected for promotion to LTC and that his promotion eligibility date would be 11 June 1986 provided that he was assigned to a duty position equal to or higher than the grade for which he was selected.  In the event that he was not occupying such a position he would not be promoted until the date he was assigned to such a position.  There is no evidence in his official record to show that he served in an LTC/O-5 position on or after 11 June 1986.

5.  On 13 November 1986 he was placed on the TDRL in the rank of major with a 60 percent (%) disability rating percentage.

6.  On 13 November 1991 he was removed from the TDRL and he was permanently retired in the rank/grade of MAJ/O-5 with an 80% disability rating.

7.  The Medical Evaluation Board Training Guide provided by the applicant with his application provides that Soldiers who are to be retired for disability who are on a promotion list will be retired at the higher grade.

8.  Title 10, U.S. Code, section 1372 (Grade of retirement for physical disability: members of the Armed Forces) provides 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 on the date he is retired.

	b.  The highest temporary grade or rank in which 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 was retired and which was found to exist as a result of physical examination.

	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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should have been retired at the pay grade of LTC instead of MAJ have been noted and appear to have merit.

2.  The applicable law provides that an officer retired for disability does so at the Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of physical examination.

3.  The applicant was serving on active duty as an AGR major when he was injured in a motor vehicle accident on 26 June 1984 and when he was selected for promotion to LTC in 1985.

4.  Although the conditions of his promotion to the pay grade of O-5 were contingent on his being in an O-5 or higher position, it is reasonable to presume that he would have been placed in such a position had he not been processed for physical disability and would have been promoted to the pay grade of O-5.

5.  Accordingly, it would be in the interest of justice to correct his records to show that he was placed on the TDRL in the rank/grade of LTC/O-5 effective
13 November 1986 with entitlement to all back retired pay from that date and that he was subsequently permanently retired in that pay grade on
13 November 1991. 

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 that he was placed on the TDRL in the rank/grade of LTC/O-5 effective 13 November 1986;

	b.  permanently retiring him in that rank/grade n 13 November 1991; and

	c.  paying him 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)                                         AR20100021149



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ABCMR Record of Proceedings (cont)                                         AR20100021149



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