IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016964 


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 that he be placed on the retired list in the rank and pay grade of master sergeant (MSG)/E-8 and that he be paid all back pay and allowances due as a result of this correction.

2.  The applicant states the transition point failed to request a grade determination at the time of his retirement and it resulted in him being retired in the pay grade of E-7 when he should have been retired in the pay grade of E-8, the highest rank he held. 

3.  The applicant provides:

* A letter from the board recorder
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A copy of his retirement orders
* Orders assigning him to the transition point
* Promotion orders to E-8
* Voluntary Reduction Orders to E-7
* Orders to active duty in the Active Guard Reserve (AGR) Program
* Disability Election Form
* A response from this Board regarding his 27 January 2000 application to the Board 




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 on active duty as a recruiter in the California Army National Guard (CAARNG) in the AGR program in the pay grade of E-7 when he was promoted to the pay grade of E-8 on 6 February 1991.

3.  On 31 March 1993, the applicant accepted a voluntary reduction to the pay grade of E-7 to accept an AGR tour at a different location.

4.  On 24 February 1995, the findings of a Physical Evaluation Board (PEB) that convened at Fort Lewis, Washington was approved.  The PEB found that the applicant was unfit for further duty and recommended that he be given a 10% service-connected disability rating.  There is no evidence to show that the Physical Disability Evaluation Board requested a grade determination in his case.

5.  On 30 November 1995, he was honorably retired by reason of permanent disability in the pay grade of E-7 and he was placed on the Retired List effective 1 December 1995 in pay grade E-7.  He had served 20 years and 24 days of active service and had he had 24 years,1 month, and 27 days of service for pay purposes.

6.  A review of his official records shows no derogatory information that would serve to show unsatisfactory service of any kind.

7.  Paragraph 3-3 of Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) provides that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, title 10, U.S. Code.)  

8.  Title 10 of the U.S. Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: 

	a.  the grade in which he is serving on the date when his name is placed on the Retired List; 

	b.  the highest grade in which he served satisfactorily; or

	c.  the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been placed on the retired list in the rank and pay grade of MSG/E-8 has been noted and appears to have merit.

2.  The applicant was promoted to the pay grade of E-8 and was serving on active duty in the AGR program when he accepted a voluntary reduction to the pay grade of E-7 to accept a position in a different location.  At the time he was retired by reason of permanent disability, by law, members of the Armed Forces being retired for disability were entitled to be placed on the Retired List in the highest grade in which they satisfactorily served.

3.  The applicant was serving in the pay grade of E-7 at the time he was retired in the pay grade of E-7; however, by virtue of the fact that he was promoted to the pay grade of E-8 and served satisfactorily in that grade, he should have been placed on the Retired List under operation of law to the rank and grade of MSG/E-8 instead of being retired in the rank he was serving.

4.  Accordingly, it would be in the interest of justice at this time to correct his records to show he was placed on the Retired List in the rank and grade of MSG/E-8 effective 1 December 1995 with entitlement to all back pay and allowances that result due to this change.







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 showing he was placed on the Retired List in the rank and grade of MSG/E-8, effective 1 December 1995, with entitlement to all back pay and allowances that flow from this change.



      _______ _   __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)                                         AR20130016964



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016964



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1