IN THE CASE OF:	

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017126 


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 rank/grade from specialist four (SP4)/E-4 to sergeant (SGT)/E-5 for Combat-Related Special Compensation (CRSC) and his Survivor Benefit Plan (SBP) election.

2.  The applicant states:

   a.  His CRSC award letter and SBP election are in error as they reflect his rank/grade as SP4/E-4.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflected his rank/grade as SP4/E-4.  However, when he retired in 1971, he was issued a DD Form 215 (Correction to DD Form 214) that amended his rank/grade to SGT/E-5.  He was recently approved for CRSC in August 2014.  Because compensation is based on rank, the amount may be incorrect.  

	b.  When he retired on 10 May 1971, he only had two choices: Army disability retired pay or Department of Veterans Affairs (VA) compensation.  He elected VA compensation which at the time paid more and was not based on rank.  Thus, the error in rank was not significant then.  He tried to correct his rank with regard to the SBP during the first few years after his retirement to no avail.  He wants his CRSC to be based on his E-5 rank.

3.  The applicant provides his DD Form 214, DD Form 215, and promotion 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 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 records show he enlisted in the Regular Army on 11 August 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam from 7 January to 11 April 1970.  He was wounded in action on 2 April 1970 and evacuated from theater to a stateside hospital.  He was advanced to SP4/E-4 on 27 August 1970.

4.  He was considered by a physical evaluation board that recommended his permanent retirement by reason of disability.  

5.  On 3 June 1971, Department of the Army, Office of the Adjutant General published Letter Orders Number D 6-75 placing him on the Retired List in the grade of SP4 effective 10 June 1971. 

6.  He retired on 10 June 1971 and he was placed on the Retired List by reason of permanent disability.  His DD Form 214 shows in items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4" respectively and item 6 (Date of Rank) shows the entry 27 August 1970. 

7.  While his retirement processing was ongoing, on 25 May 1971, Fitzsimmons General Hospital published Special Orders Number 110 advancing him to the rank/grade of SGT/E-5 effective 17 May 1971.  

8.  On 21 April 1976, The Army Adjutant General issued him a DD Form 215 that corrected items 5a and 5b to show "SGT" and "E-5" and item 6 to show 17 May 1971. 

9.  On 12 June 2014, he applied for CRSC and on 12 August 2014, the U.S. Army Human Resources Command (HRC), Fort Knox, KY issued him a decision letter informing him of CRSC approval.  The letter listed his rank as SPC (replaced the abbreviation SP4). 

10.  His retired pay record at the Defense Finance and Accounting Service (DFAS) shows:

* he receives VA pay in lieu of Army disability pay 
* he elected spouse SBP coverage
* DFAS issues him a monthly SBP Premium Statement from his remittance account showing the monthly premium that is due from the VA for his SBP coverage
* the DFAS SBP Premium Statement lists his grade as E-4
* DFAS confirmed his retired grade is E-4

11.  On 23 April 2015, HRC issued him an updated decision letter informing him of CRSC approval.  The letter updated his rank to SGT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired by reason of disability on 10 June 1971.  He held the rank/grade of SP4/E-4 at the time.  While his disability processing was ongoing and unbeknownst to the Department of the Army, Office of the Adjutant General, the local hospital commander appears to have promoted him to SGT/E-5 on 17 May 1971.  He retired on 10 June 1971.  His disability retirement orders retired him in the rank of SP4.  

2.  Years later, he was issued a DD Form 215 that corrected his rank/grade and date of rank to SGT/E-5 effective 17 May 1971; however, his retirement orders were not corrected.  Therefore, he is entitled correction of Letter Orders Number D 6-75, issued by Department of the Army, Office of the Adjutant General on 3 June 1971 to show he was placed on the Retired List in the rank of SGT effective 10 June 1971. 

3.  The applicant enrolled in the SBP for spouse coverage at some point.  Because he elected to receive VA pay in lieu of Army disability pay, SBP premiums were due from his VA pay on a monthly basis.  As a result of the change in his retired pay grade, his pay record should be reviewed to determine the correct premiums based on his correct retired pay grade of SGT.  


4.  CRSC is not based on rank.  It is based on the VA disability rate, marital status, and number of dependents.  Nonetheless, HRC issued him a new decision letter reflecting his retired rank as a SGT.  HRC mailed him a copy of the revised decision letter. 

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:

* amending Letter Orders Number D 6-75, issued by Department of the Army, Office of the Adjutant General on 3 June 1971 to show he was placed on the Retired List in the rank of SGT/pay grade E-5 effective 10 June 1971
* reviewing his retired pay account and paying (or collecting from) him any money due as a result of this correction 



      _______ _   __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)                                         AR20140017126



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ABCMR Record of Proceedings (cont)                                         AR20140017126



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