IN THE CASE OF:	  

		BOARD DATE:	    21 July 2011

		DOCKET NUMBER:  AR20100029882 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 December 1990 to show he was placed on the Temporary Disability Retired List (TDRL) in the rank/pay grade of sergeant (SGT)/E-5.

2.  He states SGT/E-5 was his highest grade held and he should have been retired at that grade.  He also states his DD Form 214 for the period ending 29 August 1985 shows his grade as E-5.  In accordance with Army regulations, he should have been retired at his highest pay grade.  He did not know about the regulatory provision at the time of his retirement.

3.  He provides a copy of his DD Form 214 for the period ending 29 August 1985.

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 show he enlisted in the Regular Army (RA) on 5 March 1980.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewman).  He was promoted to pay grade E-5 effective 1 September 1982 with a date of rank of 22 August 1982.  He was honorably discharged on 29 September 1982 for the purpose of immediate reenlistment.  He reenlisted in pay grade E-5 on 30 September 1982 for 3 years.

3.  On 20 May 1983, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for violating a lawful general regulation by drinking on duty on 11 May 1983.  His punishment included a reduction to pay grade E-4.  He was reduced to pay grade E-4 on 20 May 1983.

4.  He was honorably released from active duty (REFRAD) on 29 September 1985 at the expiration of his term of service (ETS) and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He was credited with completion of 5 years, 6 months, and 25 days of net active service.

5.  Item 4a (Grade, Rate or Rank), item 4b (Pay Grade), and item 12h (Effective Date of Pay Grade) of his DD Form 214 for the period ending 29 September 1985 show the entries "SGT," "E-5," and "82  09  01," respectively.

6.  He was honorably discharged from the USAR on 4 March 1986.  His discharge orders show his pay grade as E-5.

7.  On 3 October 1986, a DD Form 215 (Correction to DD Form 214) was issued correcting item 4a and item 4b of his DD Form 214 for the period ending 29 September 1985 to show the entries "SP4" [specialist four] and "E-4."

8.  He again enlisted in the RA in pay grade E-3 on 6 April 1989 for 4 years.  He was promoted to pay grade E-4 on 12 June 1989.

9.  Orders D217-17, dated 2 November 1990, were issued by the Total Army Personnel Command relieving him from active duty because of physical disability with an effective date of 21 December 1990.  The orders show his rank as "SPC" [specialist].

10.  He was honorably discharged from active duty on 21 December 1990 for temporary disability and placed on the TDRL under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(2)4.  He was credited with completion of 1 year, 8 months, and 16 days of net active service.

11.  Item 4a, item 4b, and item 12h of his DD Form 214 for the period ending 21 December 1990 show the entries "SPC," "E-4," and "89  06  12," respectively.

12.  Title 10, U.S. Code, section 1372, specifies 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 in which he is served on the date when his name was placed on the TDRL or on the date when retired, (2) the highest temporary grade in which he served satisfactorily, (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.

13.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB.  This regulation provides guidance for processing grade determinations and states that for enlisted cases, the AGDRB will make final determinations on behalf of the Secretary of the Army.  It will determine the highest grade in which a Soldier has served satisfactorily for the purpose of advancement on the Retired List.  It further states that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay and each case will be considered on its own merits. 
The standard for grade determinations is not whether the individual has been sufficiently punished.

14.  Army Regulation 15-80 also contains guidance on what service will not be considered satisfactory for grade determination purposes.  It states that generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by NJP, or the result of the sentence of a court-martial.

15.  Title 10, U.S. Code, section 3964, provides the legal authority for advancement on the Retired List to a higher grade after 30 years of service for warrant officers and enlisted members.  It states that each retired enlisted member of the Army who is retired with less than 30 years of active service is entitled, when his/her active service plus his/her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he/she served on active duty satisfactorily as determined by the Secretary of the Army.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reduced from pay grade E-5 to E-4 on 29 May 1983 by NJP due to misconduct.  He was honorably REFRAD on 29 September 1985 for ETS.  He was issued a DD Form 214 showing his pay grade as E-5.  On 3 October 1986, a DD Form 215 was issued correcting this DD Form 214 to show his pay grade as E-4.

2.  He again enlisted in the RA on 6 April 1989 in pay grade E-3.  He was promoted to pay grade E-4 on 12 June 1989.  On 2 November 1990, orders were published releasing him from active duty for physical disability.  He was honorably retired on 21 December 1990 and placed on the TDRL in pay grade 
E-4.

3.  There is no evidence of record and he provided none to show he was again promoted to pay grade E-5 and served satisfactorily in that grade prior to his retirement on 21 December 1990 and placement on the TDRL.  The evidence of record confirms he held the rank/grade SPC/E-4 on the date of his retirement.  He was properly placed on the Retired List in that same rank/grade.

4.  Therefore, he is not entitled to correction of his TDRL orders and DD Form 214 for the period ending 21 December 1990 to show he was retired in the rank and pay grade of SGT/E-5.

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 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)                                         AR20100029882



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ABCMR Record of Proceedings (cont)                                         AR20100029882



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