PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 April 2000                   
	DOCKET NUMBER:   AR2000036223

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be advanced on the retired list to the highest grade he held, Technical Sergeant.

3.  The applicant states that he was ill at the time of his discharge and was not able to attend his medical proceedings; therefore, he was unable to dispute his rank.

4.  The applicant’s military records show that he enlisted in the Regular Army on 28 March 1941, arrived in the Pacific Theater of Operations in April 1942, was promoted to Technical Sergeant (permanent) 28 September 1944, and departed the theater on or about July 1945.  He was separated in the rank of Technical Sergeant on 3 August 1945.  He had earned the Army Good Conduct Medal.  

5.  On 30 October 1945, the applicant reenlisted in the Regular Army.  He was advanced to Master Sergeant (grade I) on 31 August 1949.  On 16 September 1950, he was convicted by a general court-martial of two specifications of disobeying a lawful order.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and to confinement at hard labor for            15 years.  He was discharged, with a dishonorable discharge, pursuant to his court-martial sentence on 17 January 1951.

6.  On 28 March 1952, while in confinement, the applicant was allowed to reenlist as a Private, E-1 for 1 year, 1 month and 5 days.

7.  On or about 5 May 1952, the applicant was hospitalized and diagnosed with schizophrenic reaction.  It was recommended he appear before a physical evaluation board (PEB).  On 29 August 1952, a PEB found the applicant unfit for duty due to a mental disability with a disability rating of 50 percent.  On              30 September 1952, the applicant was retired, by reason of physical disability, as a Private, E-2.

8.  In 1955, the applicant applied to The Adjutant General to increase his retired pay to the amount due under the highest rate that he held while on active duty.  That office responded “…after a thorough review of your records by reviewing officials within the Department of the Army, it was determined that the highest grade satisfactorily held by you during your entire enlistments was that of private (E-2).”

9.  U. S. Code, Title 10, section 1372, provides that any member retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the highest grade or rank in which he served satisfactorily as determined by the Secretary of the armed force from which he is retired. 

10.  The enlisted grade structure of the Army during the period 1 September 1942 to 31 July 1948 provided for seven grades:

     Grade 1 – Master Sergeant and First Sergeant
     Grade 2 – Technical Sergeant
     Grade 3 – Staff Sergeant and Technical 3d Grade
     Grade 4 – Sergeant and Technical 4th Grade
     Grade 5 – Corporal and Technical 5th Grade
     Grade 6 – Private 1st Class
     Grade 7 – Private

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  The evidence of record shows that the applicant served as a permanent Technical Sergeant for 11 months during his first enlistment.  During that enlistment he also served over 3 years in the Pacific Theater of Operations and earned the Army Good Conduct Medal.  Notwithstanding the determination of The Adjutant General’s office in 1955, the Board concludes that the applicant did satisfactorily serve as a Technical Sergeant and should have been placed on the retired list, effective 1 October 1952, in that rank.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was placed on the retired list on              1 October 1952 in the retired rank of Technical Sergeant at the current equivalent of pay grade.

2.  That the Defense Finance and Accounting Service pay to the applicant all pay and allowances due as a result of the aforementioned correction retroactive to    1 October 1952.

RD VOTE:  

__sk____  __kak___  __clg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Stanley Kelley
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036223	
SUFFIX		
RECON		
DATE BOARDED	20000426	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.09	
2.		
3.		
4.		
5.		
6.