IN THE CASE OF:	   

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20120019408 


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 specialist four (SP4)/E-4 instead of private first class (PFC)/E-3.

2.  The applicant states upon completing his tour in the Republic of Vietnam and returning to the United States he was promoted to SP4/E-4.  He is very proud to have served his country and just wants to set the record straight.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 15 June 1966 in the rank/grade of private (PVT)/E-1.  He completed initial entry training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His record contains the following pertinent documents:

	a.  A DA Form 20 (Enlisted Qualification Record) which shows he was promoted to the rank/grade of private (PV2)/E-2 on 15 October 1966 and to PFC/E-3 on 5 December 1966.

	b.  Special Orders Number 328 issued by Headquarters, 25th Infantry Division which show he was promoted to PFC/E-3 on 5 December 1966.

	c.  A DA Form 1361 (Recommended Findings of Physical Evaluation Board (PEB)), dated 21 December 1967, which shows a PEB determined he was physically unfit for military service as a result of an injury incurred while entitled to receive basic pay as the proximate result of the performance of military service.  It was further determined that his condition was a direct result of armed conflict and was caused by an instrumentality of war.  As a result, he was recommended for placement on the Temporary Disability Retirement List (TDRL) in the rank/grade of PFC/E-3.

	d.  A letter from the Office of the Adjutant General to the Commanding General, Walter Reed General Hospital, dated 7 February 1968, which announced the pending retirement of the applicant.  This letter shows his rank/grade as PFC/E-3.

	e.  Department of the Army, Special Orders Number 27, dated 7 February 1968, which show that having been determined unfit for duty by reason of physical disability, the applicant was released from assignment and duty on 14 February 1968 and placed on the TDRL on 15 February 1968 in the rank/grade of PFC/E3.

	f.  His DD Form 214 which shows he was honorably retired due to placement on the TDRL on 14 February 1968 in the rank/grade of PFC/E-3.

	g.  An AGPZ Form 977 (Data for Retired Pay), dated 7 February 1968, which shows his highest grade attained and retired pay grade as PFC/E-3.

	h.  A DA Form 199 (PEB Proceedings), dated 13 March 1972, which shows a PEB determined he remained unfit for continued service due to a permanent medical disability and recommended he be removed from the TDRL and permanently retired in the rank/grade of PFC/E-3.

	i.  Office of the Adjutant General Letter Orders Number D 4-966, dated 21 April 1972, show that having been determined permanently unfit for duty by reason of physical disability, the applicant was removed from the TDRL on 
30 April 1972 and permanently retired in the rank/grade of PFC/E-3 on 1 May 1972.

	j.  An AGPZ Form 977, dated 21 April 1972, which shows his retired pay grade as PFC/E-3 when he was removed from the TDRL and placed on the Retired List.

4.  His record is void of any indication he was ever promoted to the rank/grade of SP4/E-4.

5.  Title 10, U.S. Code, section 1372 states that any member of an armed force 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:

	a.  the grade of rank in which he/she is serving on the date when his/her name is placed on the TDRL or the date he/she is retired

	b.  the highest temporary grade or rank in which he/she served satisfactorily, as determined by the Secretary of the armed force from which he/she is retired;

	c.  the permanent regular or reserve grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of a physical examination; or 

	d.  the temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she 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.  Evidence clearly shows the applicant was promoted from PV2/E-2 to PFC/E-3 on 5 December 1966.

2.  Evidence also shows the applicant was subsequently retired from active duty on 14 February 1968 and placed on the TDRL in the rank/grade of PFC/E-3 with a disability rating of 30%.

3.  On 30 April 1972, following a final TDRL medical examination, the applicant was removed from the TDRL and placed on the permanent Retired List in the retired rank/grade of PFC/E-3.

4.  The applicant's record is void of any evidence showing he was ever promoted to the rank/grade of SP4/E-4 at any time during his service.  As a result, there is no basis for promoting him to SP4/E-4 on the Retired List.

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 that 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)                                         AR20120019408





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019408



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1