BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120000989 


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, advancement on the Retired List to the highest grade he held of captain (CPT)/O-3E under Title 10, U.S. Code (USC), section 1372 with retroactive pay and allowances to 8 May 1995.  

2.  He states he has attached several copies of orders, dated 28 May 1997, advancing him to the grade of CPT/O-3E and a DA Form 3713 (Date for Retired Pay) showing he was advanced with an effective date of 21 May 1997.  

3.  He provides:

* Two letters to Retirement Services, U.S. Army Reserve Personnel Center (ARPERCEN)
* Reassignment, amendment, and retirement orders
* DA Form 3713-E
* Three letters from the Defense Finance and Accounting Service (DFAS)
* DD Form 827 (Application for Arrears in Pay)
* Letter from Retirement Services, ARPERCEN
* Memorandum from U.S. Army Reserve Personnel Command (currently known as the U.S. Army Human Resources Command)
* Letter from the National Personnel Records Center
* Email correspondence from DFAS
* Letter from the Army Review Boards Agency


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 enlisted in the Regular Army on 14 December 1964 and was honorably discharged on 2 January 1969 to accept a commission as an officer in the Army.  

3.  He was appointed as a Reserve commissioned officer on 3 January 1969 in the rank of second lieutenant with a concurrent call to active duty.  

4.  He was promoted to first lieutenant on 3 January 1970 and to CPT on 3 January 1971.  

5.  On an unknown date, he tendered his unqualified resignation from the U.S. Army under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Personnel), chapter 3.  

6.  He was discharged from active duty on 12 July 1972 in the rank of CPT/O-3.  At the time of his discharge, he had completed 3 years, 6 months, and 9 days of active commissioned service.  

7.  After a break in service, he enlisted in the Regular Army on 6 December 1972 in the rank of staff sergeant.  He continued to serve on active duty through a series of reenlistments.

8.  He was promoted to sergeant major (SGM)/E-9 on 27 July 1985.

9.  On an unknown date in April 1989, he was evaluated by a Medical Evaluation Board (MEB).  The MEB found he had diabetes mellitus (insulin required), degenerative arthritis bilateral knees, and lichenification and dry skin of lower extremities.  He was referred to a Physical Evaluation Board (PEB).  
10.  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He agreed with the findings and recommendation of the MEB.

11.  On 12 April 1989, an informal PEB determined he was physically fit for duty in his current grade and MOS.  He nonconcurred with the PEB findings and recommendations, demanded a formal hearing with personal appearance, and requested regularly appointed military counsel.

12.  On 19 May 1989, a formal PEB determined he was physically unfit for diabetes mellitus (insulin required), degenerative arthritis bilateral knees, and lichenification and dry skin of lower extremities.  The PEB recommended he be permanently retired from the service with a 40 percent combined disability rating.  

13.  Orders D111-13, dated 9 June 1989, retired him from active duty on 31 August 1989 and placed him on the Retired List in the rank of SGM on the following date.  He completed 24 years, 3 months, and 23 days of total active military service at the time of his retirement.

14.  His DA Form 3713-E, dated 21 May 1997, indicates he was advanced on the retired list from SGM to CPT/O-3.  This form indicates the statute authorizing retirement as Title 10, USC, section 3964.  

15.  In a letter, dated 28 May 1997, ARPERCEN informed him that he had been advanced on the Retired List, effective 8 May 1995, to the grade of CPT/O-3E, the highest grade he satisfactorily held.  

16.  In a letter, dated 27 April 1999, the U.S. Army Reserve Personnel Command notified the applicant that the DA Form 3713 for advancement to CPT was issued by this Headquarters erroneously.  The letter indicated the applicant was entitled to disability retired pay under Title 10, USC, section 1201 and therefore, he was not entitled to advancement under Title 10, USC, section 3964.

17.  In a letter, dated 4 November 2011, DFAS informed the applicant to contact the Army retirement services and make a claim to request an administrative correction to his account.  He was advised to explain to the Army retirement services that he was retired as a SGM/E-9, but he should have been automatically advanced to his highest rank satisfactorily held upon retirement.



18.  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 in behalf of the Secretary for those who have attained 30 years of service.

19.  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 Temporary Disability Retired List (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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served as an enlisted Soldier on active duty from 14 December 1964 through 2 January 1969.  

2.  He served on active duty as a Reserve commissioned officer from 3 January 1969 through 12 July 1972 and in the Regular Army as an enlisted Soldier from 6 December 1972 through 31 August 1989.  During these periods, he was promoted to CPT on 3 January 1971 and to SGM on 27 July 1985.  
3.  Orders D111-13, dated 9 June 1989, show he retired from active duty on 31 August 1989 and was placed on the Retired List in the rank of SGM.  He completed 24 years, 3 months, and 23 days of total active military service.  He retired by reason of permanent physical disability and was placed on the Retired List on 1 September 1989.

4.  The evidence of record shows he was advanced on the retired list from SGM to CPT, effective 8 May 1995.  He was notified on 27 April 1999 he had been erroneously advanced to CPT under Title 10, USC, section 3964.  

5.  However, under Title 10, USC, Section 1372, he should have been placed on the retired list at the highest rank satisfactorily held.  Therefore, he should have been placed on the retired list in 1989 at the highest rank held, CPT/O-3E.

6.  It appears that an administrative error occurred in this case regarding the applicant’s rank on the retired list.  Therefore, it would be appropriate to correct his records to show he was placed on the retired list in the rank of CPT and pay grade O-3E, effective at his retirement, and that he be paid retired pay at the rate that is most advantageous to him.  

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 he was placed on the retired list in 1989 at the rank/pay grade of CPT/O-3E, effective upon his retirement;

	b.  re-computing his retired pay entitlements based on the rank/pay grade of CPT/O-3E; and

   c.  paying him retired pay computed at the pay grade that is most advantageous to him (E-9 if appropriate) with entitlement to all back pay and allowances due him.




      _______ _   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)                                         AR20120000989





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ABCMR Record of Proceedings (cont)                                         AR20120000989



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