RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 March 2006
      DOCKET NUMBER:  AR20050012152


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Mr. Jeffrey P. Parsons            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 reconsideration of his earlier request to
correct his records to show he was promoted to lieutenant colonel.

2.  The applicant states the original Record of Proceedings made several
points [in paragraph 2 of THE APPICANT'S REQUEST, STATEMENT, AND EVIDENCE
portion]:

      a.  "The applicant states that he was promoted to Major in June 1955
by order of the President and was not advised of the promotion until
November 2003."  This is true, as per the attached document.  This
information was never communicated to him until after his retirement and a
request was made for a copy of his military records, which he received in
November 2003.

      b.  "He failed to be advanced to lieutenant colonel."  This is true,
since he was promoted to Major on 1 July 1955 he should have been moved up
one rank upon retirement.

      c.  "He was retired on 1 July 1955."  This is not true, as per the
attached Certificate of Retirement from the Armed Forces he retired on 1
September 1964 and he did not receive this information until 19 November
2003.

      d.  "He never received any payment or promotions to Lieutenant
Colonel at the time of his retirement in 1964."  This is true.

      e.  "He also states, in effect, his records should be corrected
because of injustice to his military service and the failure to obey the
order of the President." This is true.

      f.  "He is now confined to a wheel chair with multiple physical
problems." This is true.

      g.  "He was rated 50 percent disabled by the Director at Walter Reed
Army Hospital in 1959.  This disability rating was not accepted by the
Department of Veterans (VA) (sic) and they rated him 30 percent disabled.
He has not received pay from the Army based on the 50 percent disability."
This is true.  They are still looking for the original documents that will
support these claims and will forward them to the Board as soon as they are
located.

3.  The applicant provides a promotion certificate dated 4 August 1955; a
certificate of retirement dated 1 September 1964; and the original Record
of Proceedings.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040008807 on 28 June 2005.

2.  The applicant enlisted in the Regular Army on 20 June 1939.  He was
honorably discharged on 22 April 1943 to accept a commission in the Army of
the United States (AUS) as a second lieutenant effective 23 April 1943.  He
was released to the Officer Reserve Corps on 4 August 1947.  He enlisted in
the Regular Army on 9 April 1948.  He was discharged on 25 February 1952 to
accept a commission in the U. S. Army Reserve (USAR) effective 26 February
1952 and entered active duty as a captain.

3.  The applicant's DA Form 66 (Officer Qualification Record) shows he was
promoted to major, USAR, effective 1 July 1955.  The applicant last audited
his DA Form 66 on 19 November 1958.

4.  The applicant retired from active duty for length of service on 1
September 1959 after completing 20 years of active Federal service.
Department of the Army Special Orders Number 159 dated 12 August 1959 shows
he was retired in the grade of major.

5.  On 15 July 1970, the ABCMR recommended the applicant's records be
corrected to void his release from active duty of 31 August 1959 and his
placement on the AUS Retired List on 1 September 1959; to show he was
placed on the Temporary Disability Retired List (TDRL) on 1 September 1959
in the grade of major; and, having been found physically fit, to show he
was removed from the TDRL on 31 August 1964 and placed on the AUS Retired
List on            1 September 1964.

6.  On 5 October 1970, the applicant queried The Adjutant General as to the
status of his application.  On 17 November 1970, he was informed his
records had been corrected and the U. S. Army Finance Center would adjust
his retired pay accordingly.  On 23 December 1970, the Retired Pay
Division, U. S. Army Finance Center informed him the action taken by the
ABCMR did not result in any change in his basic pay entitlement or an
adjustment of retired pay.  He was also informed the correction did change
the amount of retired pay subject to withholding tax for the period 1
September 1959 through 31 August 1964 (to none).  He was provided corrected
tax statements for the calendar years 1959, 1960, 1961, 1962, 1963 and
1964.

7.  On 4 January 1971, the applicant informed the Office of the Under
Secretary of the Army that he did not agree with paragraph 2 (indicating
there would be no adjustment of retired pay except for tax considerations)
of the U. S. Army Finance Center's 23 December 1970 letter.

8.  Title 10, U. S. Code, section 3961(b) states that, unless entitled to a
higher retired grade under some other provision of law, a Regular or
Reserve of the Army who retirees for other than physical disability retires
in the regular or reserve grade that he holds on the date of his
retirement.

9.  Title 10, U. S. Code, section 1372 states that, unless entitled to a
higher retired grade under some other provision of law, a member 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:

      (1) the grade or rank in which he is serving on the date when his
name is placed on the TDRL or the date he is retired;

      (2) the highest temporary grade or rank in which he served
satisfactorily, as determined by the Secretary;

      (3) the permanent regular or reserve grade to which he would have
been promoted had it not been for the physical disability for which he is
retired; and

      (4) the temporary grade to which he would have been promoted had it
not been for the physical disability for which he is retired.

10.  Title 10, U. S. Code, section 1402 states a member of an armed force
who first became a member before 8 September 1980 will have his retired pay
computed by taking the retired pay base and multiplying it by 2 1/2 percent
of the sum of the years of service that may be credited to him.

11.  Title 10, U. S. Code, section 1401(a) states temporary disability
retired pay is computed by taking the retired pay base, multiplying by
either 2 1/2 percent of years of service or the percentage of disability on
the date the member's name is placed on the TDRL, and adding any amount
necessary to increase the amount to 50 percent of the retired pay base.

DISCUSSION AND CONCLUSIONS:

1.  The applicant made several contentions regarding his original ABCMR
Record of Proceeding, all of which were taken from statements made by him
in his application or which were paraphrased from statements made by him in
his application.

2.  The applicant was fully aware, well before November 2003, that he had
been promoted to major (USAR) on 1 July 1955.  His DA Form 66 showed he was
promoted to major (USAR) on 1 July 1955, and he audited his DA Form 66 on
19 November 1958.  His 1959 retirement orders showed he was placed on the
Retired List as a major.

3.  There are no provisions in law for being "moved up one rank upon
retirement."  Unless entitled to a higher retired grade under some other
provision of law, a Reserve of the Army who retirees for other than
physical disability retires in the reserve grade that he holds on the date
of his retirement.  The applicant was originally retired as a major and was
retired as a major upon the ABCMR's correction.

4.  As to his physical disability retirement (i.e., placement on the TDRL)
on          1 September 1959, the law again states that, unless entitled to
a higher retired grade under some other provision of law, a member whose
name is placed on the TDRL is entitled to the grade equivalent to the
highest grade or temporary grade in which he is serving on the date when
his name is placed on the TDRL.  The law also provides that a member may be
retired in the permanent or temporary grade to which he would have been
promoted had it not been for the physical disability for which he is
retired.  However, since there is no evidence to show the applicant was on
a recommended list for promotion to lieutenant colonel, this provision of
the law does not apply to him.

5.  The applicant had stated in his original application "Retirement it was
issued on 1st July 1955."  The Board analyst merely paraphrased this
statement as "He was retired on 1 July 1955."  In addition, the applicant
contended it was not    until 19 November 2003 that he received information
that he was retired on         1 September 1964.  However, the evidence of
record shows he was fully aware he had been retired (after removal from the
TDRL) on 1 September 1964 when he corresponded with Army officials between
October 1970 and January 1971.

6.  The applicant contended he has not received pay from the Army based on
the 50 percent disability.

7.  When the applicant was actually retired for length of service on 1
September 1959, he had completed 20 years of active Federal service.  His
retired pay would have been computed using his base pay at time of
retirement multiplied by 2 1/2 times his years of service, i.e., at 50
percent.

8.  Had the applicant actually been placed on the TDRL on 1 September 1959,
the maximum retired pay he could have received would have been 50 percent
of his base pay at time of retirement.  That is, there was no difference in
the amount of retired pay he would have received.  There would only have
been a difference in the rate at which his retired pay would have been
taxed, and the U. S. Army Finance Center provided him with corrected tax
statements after the ABCMR corrected his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jpi___  __jpp___  __eem___  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 to amend the decision of
the ABCMR set forth in Docket Number AR20040008807 dated 28 June 2005.




                                  ___John P. Infante____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012152                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060323                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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