PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 January 2000                   
	DOCKET NUMBER:   AR1999032767

	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. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Margaret V. Thompson		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 his DD Form 214 be corrected to show he separated as a Specialist (SPC), E-4.

3.  The applicant states that all records indicate he held the rank of SPC.  He provides no supporting evidence.  His application is dated 8 July 1998.

4.  The applicant’s military records show that after having had prior service during which the highest rank he held was SPC, E-4, he reenlisted in the Regular Army on 20 June 1990 in the rank of Private First Class, E-3.  He was promoted to SPC effective 24 January 1992.

5.  On 6 January 1993, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully transporting his assigned weapon in a civilian vehicle.  His punishment included a reduction to Private First Class, E-3, suspended.  That suspension was later vacated.

6.  On 7 January 1993, a medical evaluation board referred the applicant to a physical evaluation board (PEB) for reactive airway disease, rhinitis, hemorrhoids, and reflux disease.  On 18 March 1993, a PEB found the applicant unfit for duty by reason of reactive airway disease and recommended his placement on the Temporary Disability Retirement List (TDRL) with a 30 percent disability rating.  

7.  On 26 April 1993, orders were published placing the applicant on the TDRL, effective 25 May 1993, with a retired grade of rank of SPC.

8.  On 5 May 1993, the applicant accepted NJP under Article 15, UCMJ for  failing to go to his appointed place of duty.  His punishment included a reduction to Private (PV2), E-2, suspended.  On 21 May 1993, the suspension was vacated.

9.  On an unknown date, corrected 26 April 1993 orders were published placing the applicant on the TDRL, effective 29 May 1993, with a retired grade of rank of PV2.

10.  On 28 May 1993, the applicant was retired by reason of a physical disability, temporary.  His DD Form 214 shows his grade of rank as PV2, E-2 and his date of pay grade as 5 May 1993.  He was then placed on the retired list effective      29 May 1993.

11.  On 6 January 1995, orders were published removing the applicant from the TDRL and permanently retiring him in his current grade of rank effective              6 January 1995.  The standard name line on these orders show his grade of rank as SPC.  There is no evidence to show these orders were ever amended or corrected.

12.  Army Regulation 635-5 prescribes the separation documents prepared for soldiers upon retirement, discharge or release from active military service.  It establishes standardized policy for the preparation and distribution of DD Form 214.  The DD Form 214 is a synopsis of the soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

13.  U. S. Code, Title 10, section 1372, provides that any member retired for physical disability 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.  The evidence shows applicant was not afforded this opportunity prior to his placement on the TDRL.

14.  On 4 January 2000, a “mock” Army Grade Determination Review Board recommended that, if the applicant were still on active duty, he should be medically retired as a SPC, E-4.

CONCLUSIONS:

1.  The Board concludes there is no error on the applicant’s DD Form 214.  The evidence of record shows that he had been reduced for misconduct twice after his promotion to SPC.  His Article 15 dated 5 May 1993 reduced him to PV2, E2, suspended.  The suspension was vacated on 21 May 1993, making his date of rank the date of the Article 15.  

2.  The DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  On 28 May 1993, the date of the applicant’s retirement, he held the grade of rank of PV2, E-2 and this is correctly reflected on his DD Form 214.

3.  However, the applicant had held a higher rank than PV2 during his military service.  He was entitled to be placed on the TDRL in the grade equivalent to the highest grade or rank in which he served satisfactorily and he should have been afforded the opportunity to have his records reviewed by the Army Grade Determination Review Board to determine that grade.  He was not afforded that opportunity.

4.  On 4 January 2000, a “mock” Army Grade Determination Review Board recommended that, if the applicant were still on active duty, he should be medically retired as a SPC, E-4.  Based upon his separation in the grade of SPC, E-4 during his prior term of service, the Board agrees with this recommendation and concludes that the applicant should have been placed on the TDRL, effective 29 May 1993, in the grade of rank of SPC, E-4.

5.  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 further correcting orders D78-13, U. S. Total Army Personnel Command dated 26 April 1993 to show the applicant was placed on the retired list on 29 May 1993 in the retired grade of rank of SPC.

2.  That the Defense Finance and Accounting Center pay to the applicant all pay and allowances due as a result of the aforementioned correction.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__emw___  __ewl___  _mvt____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ernest M. Willcher
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999032767	
SUFFIX		
RECON		
DATE BOARDED	20000113	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.	128.00	
3.		
4.		
5.		
6.