IN THE CASE OF:
BOARD DATE: 6 November 2012
DOCKET NUMBER: AR20120007021
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:
* records to show he was retired in the rank/grade of specialist four (SP4)/E-4 vice private first class (PFC)/E-3
* retirement certificate to show his rank as SP4
2. The applicant states he is getting [retired] pay as an E-3 but he retired as an E-4. His disability pay has been incorrect for 26 years. He has tried many times to have his rank corrected but he never got any results.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), two certificates, and 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 applicants 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 applicants 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 records show he enlisted in the Regular Army on 14 August 1981 and he held military occupational specialty 31N (Tactical Circuit Controller). He was promoted to the rank/grade of PFC/E-3 on 14 August 1982.
3. On 22 August 1984, a medical evaluation board (MEB) convened at Fort Sam Houston, TX, and diagnosed him with several unfitting conditions. The MEB recommended referral to a physical evaluation board (PEB). On 30 August 1984, he agreed with the board's findings. These MEB proceedings show his rank as PFC.
4. Orders Number 169-100, dated 29 August 1984, issued by Headquarters, Fort Sam Houston, TX, promoted him to the rank/grade of SP4/E-4, effective 1 September 1984.
5. On 4 September 1984, an informal PEB convened at Fort Sam Houston, TX, and confirmed his unfitting disability of bilateral impairment of the knees, right greater than left. The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit for duty. He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5257 and assigned a 30-percent disability rating. The PEB recommended his retirement and placement on the Temporary Disability Retired List (TDRL) because his condition was not sufficiently stable for final adjudication. On 6 September 1984, he concurred with the board's findings and waived his right to a formal hearing. These PEB proceedings show his rank as PFC.
6. Orders Number D172-15, dated 20 September 1984, issued by the U.S. Army Military Personnel Center, Alexandria, VA, relieved him from duty effective 18 October 1984, by reason of temporary physical disability, and he was placed on the TDRL on 19 October 1984. These orders show his rank as PFC and his retired rank as PFC.
7. On 18 October 1984, he was honorably retired by reason of temporary physical disability and placed on the Retired List on 19 October 1984. He completed 3 years, 2 months, and 5 days of net active service. Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) of the DD Form 214 he was issued shows the entries "SP4" and "E-4," respectively.
8. On 14 May 1986, an informal PEB convened at Fort Gordon, GA, and confirmed his unfitting disability of bilateral impairment of the knees. The PEB found the applicant's condition improved somewhat but he remained unfit for continued military service. His rating under VASRD code 5257 and 30-percent disability rating remained the same. The PEB recommended he be permanently retired as his condition had stabilized and was not expected to improve. After being apprised of his rights, the applicant failed to make an election and the findings and recommendation of the board was deemed accepted. These PEB proceedings show his rank as PFC.
9. Orders Number D121-4, dated 30 June 1986, issued by the U.S. Army Military Personnel Center, Alexandria, VA, removed him from the TDRL and permanently retired him effective 15 July 1986 in "his current grade or rank." These orders show his rank as PFC.
10. His records contain a DA Form 3713 (Data for Retired Pay), dated 30 June 1986, wherein it shows his active duty rank as "PFC," and his retired rank as "PFC."
11. The applicant provides a Certificate of Retirement, dated 16 July 1986, wherein his rank is shown as PFC.
12. Title 10, U.S. Code, section 1372, states that any member of an Armed Force who is retired for physical disability is retired in the grade or rank in which serving on the date his/her name is placed on the TDRL.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the applicant was promoted to the rank of SP4 on 1 September 1984. Although his DD Form 214 was prepared showing he held the rank of SP4 at the time he was retired from active duty on 18 October 1984, this was apparently overlooked and he was placed on the TDRL on 19 October 1984 in the rank of PFC. This error was compounded when he was permanently retired on 15 July 1986 in the rank of PFC. Therefore, he is entitled to the requested relief.
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:
* correcting his records to show he was placed on the TDRL on 19 October 1984 in the rank of SP4
* correcting his records to show he was permanently retired on 16 July 1986 in the rank of SP4
* paying him all retired pay due as a result of this correction
* issuing him a Certificate of Retirement showing he was honorably retired on 16 July 1986 in the rank of SP4
_______ _ _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) AR20120007021
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120007021
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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