PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 January 2001
	DOCKET NUMBER:   AR2000043207

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 advancement on the retired list.

3.  The applicant states that he was retired due to disability.  He contends that he served as a specialist five from sometime in 1968 until 26 October 1969 when he was honorably discharged.  He reenlisted as a specialist five on 15 September 1970 and served in that grade until he was reduced to specialist four in 1976.  

4.  The applicant’s military records show that he enlisted in the Army on 31 May 1966 for 3 years.  He successfully completed basic combat training and advanced individual training as a personnel specialist.  He was then assigned to the Republic of Vietnam.

5.  On 25 January 1967 the applicant received wounds as a result of operations against a hostile force.  He was awarded the Purple Heart and reassigned to Hawaii.  He recovered from his wounds, extended his enlistment by 5 months and remained in Hawaii for duty.  On 25 March 1969 he was promoted to specialist five and 7 months later was honorably released from active duty. 

6.  On 15 September 1970 the applicant enlisted in the Army for four years in the rank of specialist five and was immediately assigned to Europe.  While in Europe, he reenlisted on 28 May 1971 for 5 years and was reassigned to a second tour of duty in the Republic of Vietnam.

7.  The applicant again reenlisted in the Army on 3 March 1976 for 3 years, still in the rank of specialist five, (E-5).

8.  On 28 September 1976 the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for writing worthless checks.  The punishment included a reduction to specialist four, (E-4), and a forfeiture of $100.00 per month for 2 months.

9.  On 17 November 1976 the applicant again received NJP for leaving the confines of his military installation without having a valid overnight pass in his possession.  The punishment included restriction to the company area for         10 days.

10.  On 1 March 1978 orders were published to medically retire the applicant in the rank and pay grade of specialist four, (E-4).  He was placed on the temporary disability retired list (TDRL) effective 8 March 1978, with a 30 percent disability rating.  He had 10 years, 10 months and 20 days of creditable active service.

11.  Department of the Army (DA) Form 3713 (Data for Retired Pay) indicates in block 8 that the highest grade attained was specialist four, contrary to data in his personnel records showing he held specialist five for more than 6 years.
12.  On 28 November 1979 orders were published removing the applicant from the TDRL effective 30 November 1979 and permanently retiring him due to permanent disability of 30 percent.

13.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB).  It provides, in pertinent part, that the AGDRB will review cases and determine the highest grade in which a soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or separation for physical disability.

14.  Title 10, United States Code, Section 3964 provides that an enlisted member retired with less than 30 years of active service is entitled, when his service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily.

15.  Title 10, United States Code, Section 1372(2) governs the grade upon retirement of members of the armed forces who retire for physical disability.  This law provides, pertinently, that a member who is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest temporary rank or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

CONCLUSIONS:

1.  The applicant was retired under a provision of law governing disability retirements that entitled him to a grade determination at the time of his retirement.  Therefore, to advance him on the retired list is not authorized or appropriate.

2.  The applicant’s DA Form 3713 indicates his highest grade held was specialist four, (E-4).  This leads the Board to believe that a grade determination at the time of his retirement was not accomplished.

3.  The applicant’s record clearly shows that he was promoted to specialist five (E-5), served in that grade, was honorably separated from active duty in that grade, and subsequently reenlisted in that grade.  This meets the test of satisfactory service as a specialist, (E-5).

4.  The applicant’s subsequent misconduct during his last period of service cannot and should not take away from his earlier periods of satisfactory service.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was retired due to a medical disability in the rank and pay grade of specialist five, (E-5), effective 8 March 1978. 

2.  That the Defense Finance Accounting Service determine whether in light of the retroactive advancement on the retired list, the applicant is due any back pay after the appropriate offset is taken for disability compensation.

BOARD VOTE:  

__LLS___  __WTM__  __TEO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Luther L. Santiful__
		        CHAIRPERSON

INDEX

CASE ID	AR2000043207	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.