RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 April 2006
      DOCKET NUMBER:  AR20050011322


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. Jeanette R. McCants           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his separation document be
corrected to reflect his correct retired grade of 0-4.

2.  The applicant states, in effect, that his separation document (DD Form
214) incorrectly lists his retired grade as chief warrant officer two/W-2
(CW2/W-2).  He claims his orders were amended to change his retired grade
to 0-4 to show his advancement on the Retired List.  He claims this
happened after the DD Form 214 was published and he was retired.  He claims
he was advanced to the highest grade he held while on active duty, and he
now requests the
DD Form 214 be corrected.

3.  The applicant provides the following documents in support of his
application:  DD Form 214; Retirement Orders; and Amendment to Retirement
Orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 March 2005.  The application submitted in this case is
dated
27 July 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he served in the United States Naval
Reserve (USNR) from 10 June 1978 through 21 June 1978, and in the United
States Army Reserve (USAR) from 2 June 1978 through 25 February 1986.  It
also shows he served as a commissioned officer on active duty in the
United States Navy (USN) from 26 February 1986 through 20 July 1989.  The
DD Form 214 he was issued upon his release from active duty (REFRAD) in the
USN shows he held the rank of lieutenant commander/0-4 (LCDR/0-4), which he
had attained on 1 January 1988.


4.  On 31 July 1989, the applicant entered active duty in the USAR, and he
served in that status until 31 July 1995, at which time he was honorably
separated by reason of voluntary early retirement.  The DD Form 214 he was
issued confirms he held the rank of CW2/W-2, which he had attained on
25 August 1989, and that he had completed a total of 17 years, 1 month and
19 days of active military service.

5.  On 30 January 2004, the Army Grade Determination Review Board (AGDRB)
reviewed the applicant's case and determined the highest grade in which he
satisfactorily served for the purpose of computation of retired pay was 0-
4.   The AGDRB stipulated that the date the applicant would become eligible
for advancement on the Retired List would be determined by the appropriate
Human Resources Command (HRC)-St. Louis officials.

6.  On 16 April 2004, the Chief, Transition and Separations Branch,
HRC-St. Louis, notified the applicant that he would be eligible for
advancement to the grade 0-4 on the Retired List on 22 June 2008, at which
time his active duty service and time on the Retired List would equal 30
years.

7.  On 3 March 2003, the applicant reentered active duty as a CW2/W-2 in
the USAR.

8.  On 25 January 2005, Headquarters, United States Army Aviation Center
and Fort Rucker Orders Number 025-0504 authorized the applicant's release
from active duty for retirement, by reason of physical disability.  The
retired grade listed in these orders showed CW2.  On 9 May 2005,
Headquarters, United States Army Aviation Center and Fort Rucker Orders
Number 129-0505 amended Orders Number 025-0504 by changing the retired
grade to Major/0-4 (MAJ/0-4).

9.  On 23 March 2005, the applicant was honorably REFRAD for retirement, by
reason of physical disability, after completing an additional 2 years and
21 days of active military service.  The DD Form 214 he was issued at the
time shows his rank and pay grade as CW2/W-2 in Items 4a (Grade, Rate, or
Rank) and 4b (Pay Grade).  Item 18 (Remarks) contains the entry "Retired
List Grade CW2".

10.  Title 10 of the United States Code, section 3964, provides the legal
authority for advancement on the Retired List.  It states, in pertinent
part, that retired soldiers are entitled to, when their active service plus
service on the retired list totals 30 years, to be advanced on the Retired
List to the highest grade they held and in which they satisfactorily served
while on active duty as determined by the Secretary of the Army.

11.  Title 10 of the United States 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: the grade in which he is
serving on the date when his name is placed on the Retired List; the
highest grade in which he served satisfactorily; the grade to which he
would have been promoted had it not been for the physical disability that
resulted in retirement.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  Chapter 2 contains item-by-item instructions for preparing the DD
Form 214.  The instructions for completing Item 4a and Item 4b state to
enter the rank and pay grade listed on the Officer or Enlisted Record Brief
(ORB/ERB).  The instructions for Item 18 state this it will be used for
Headquarters, Department of the Army mandatory requirements when a separate
block is not available, and as a continuation for entries in blocks 11, 13,
and 14.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the retired grade listed on his DD Form
214 should be corrected was carefully considered and found to have partial
merit.  By law and regulation, a member retired by reason of physical
disability will be placed on the Retired List in the highest grade in which
he satisfactorily served.

2.  Although the applicant's advancement on the Retired List was not
scheduled to be effective until 2008, the fact that he reentered active
duty and was released from that period of active duty and placed on the
Retired List due to physical disability, he was entitled to be placed back
on the Retired List in the highest grade in which he satisfactorily served,
which was already determined to be 0-4 by the AGDRB.  Therefore, the
amendment to his final retirement orders, which authorized his placement on
the Retired List in the grade MAJ/0-4 was a valid action.

3.  The DD Form 214 he was issued appropriately listed his rank and pay
grade as CW2/W-2 in Items 4a and 4b because this was the rank and pay grade
he held on the date of REFRAD for retirement.  However, the basis for the
entry in Item 18 is unknown.  There was no reason to have a Retired List
grade entry in Item 18; however, because it was entered, it would be
appropriate to correct it to show he was being placed on the Retired List
in the grade MAJ/0-4, as authorized by his retirement orders, as amended on
9 May 2005.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JEA  _  __JAM__  __JRM__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by amending Item 18 of his
23 March 2005 DD Form 214 by deleting the current entry pertaining to his
grade on the Retired List and replacing it with the entry "Retired List
Grade MAJ/0-4"; and by providing him a correction to his separation
document that reflects this change.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
a correction to the rank and pay grade listed in Item 4a and Item 4b of his
23 March 2005 DD Form 214.




                                  _____James E. Anderholm  __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011322                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/04/04                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/03/25                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability Retirement                   |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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