IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210008711 APPLICANT REQUESTS: correction of his retirement orders to change his rank/pay grade at the time of his retirement from captain (CPT)/O-3 to major (MAJ)/O-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Excerpt from Title 10 United States Code (USC), section 1372 (Grade on retirement for physical disability members of the armed forces) * U.S. Army Transportation Center 2-Star Note * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * U.S. Army Reserve Personnel Center (ARPERCEN) Orders Number D75-8 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 19 May 1988 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect, he should have been retired at the grade of MAJ; however, the Medical Evaluation Board (MEB) was either unaware or erred in the process pertaining to his promotable status. Under the provisions of Title 10, USC, section 1372 (3), he should have been promoted to MAJ at the time of his retirement because he was recommended by a promotion selection board to the next higher grade when he was placed on the Temporary Disability Retired List (TDRL). 3. A review of the applicant's service record shows: a. With prior service, the applicant was ordered to active duty for training on 5 November 1977. He was honorably released from active duty on 16 February 1978. DD Form 214 (Report of Separation from Active Duty) shows the applicant completed 3-months and 14-days of active service. b. The applicant's Officer Record Brief (ORB) shows his rank as CPT (Promotable)(P). c. On 1 February 1982, Orders Number 18-1, issued by the U.S. Army Military Personnel Center, the applicant was promoted to the rank of CPT effective 1 March 1982. d. On 8 March 1988, the MEB found the applicant physically unfit for retention and was referred to the PEB for: * Left L5 radiculopathy * Chronic rhinitis/sinusitis with epistaxis, retention cyst, left antral floor axillary sinus * Morton's neuroma, right foot e. On 23 March 1988, the PEB found the applicant physically unfit for retention and recommended he be placed on the TDRL with 50 percent disability for: * Intervertebral disc syndrome with left L5 radiculopathy * Morton's neuroma, right foot f. On 18 April 1988, Orders Number D75-8, issued by the U.S. ARPERCEN, the applicant was relieved from assignment due to physical disability that incurred while entitled to basic pay and placed on the TDRL on 20 May 1988 with 50 percent disability in the rank of CPT. g. The applicant was honorably retired from active duty on 19 May 1988 and placed on the TDRL. DD Form 214 shows the applicant completed 8-years, 4-months, and 15-days of active service. Item 4a (Grade, Rate or Rank) shows CPT. h. On 12 October 1989, the PEB found the applicant physically unfit for retention and recommended he be placed on the Permanent Disability Retired List (PDRL) with 50 percent disability for: * Intervertebral disk syndrome, severe, recurring attacks * Morton's neuroma, right foot i. On 1 November 1989, Orders Number D221-26, issued by the U.S. Total Army Personnel Command, the applicant was removed from the TDRL and placed on the PDRL on 2 November 1989 with 50 percent disability in the rank of CPT. 4. The applicant provides: a. Excerpt from Title 10, USC, section 1372, that states unless entitled to the next higher grade under other provision of law, any member of the armed forces who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to; (3) permanent regular or reserve grade to which would have been promoted had it not been for the physical disability for which retired. b. 2-Star note from the commanding general of the U.S. Army Transportation Center, congratulated the applicant on being recommended for promotion to the rank of MAJ. 5. On 8 July 2021, in the processing of this case the U.S. Army Human Resources Command (HRC) provided an advisory opinion. The advisory official recommended full relief, unless proven otherwise ineligible, pursuant to Title 10, USC, section 1372 (3). 6. On 30 July 2021, the applicant responded to the advisory opinion concurring with the recommendation. BOARD DISCUSSION: After reviewing the application and all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The applicant’s contentions, the military record, regulatory guidance and advisory opinion were carefully considered. The Board concurred with the advisory in that full relief is warranted. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his retirement orders to reflect the highest grade held as (MAJ)/O-4. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, 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 also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 1372 (Grade on retirement for physical disability: members of armed forces), unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired. b. The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired. c. 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 which was found to exist as a result of a physical examination. d. The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008711 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1