IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220001165 APPLICANT REQUESTS: to be advanced on the retired list to the highest grade that he satisfactorily held (sergeant (SGT)/E-5) during active service under the provisions of section 3964, Title 10, United States Code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), 16 June 1987 and DD Form 214, 5 April 1993 * 1989 Honorable Discharge Certificate * DD Form 215 (Correction to DD Form 214), reissued on 26 November 2021 * Retirement Order, reissued on 10 November 2021 FACTS: 1. The applicant states he requests to be advanced on the retired list to the highest grade that he satisfactorily held during active service under the provisions of section 10 USC, section 3964. Although he retired on April 6, 1993, in the grade/rank of specialist (SPC)/E-4, he previously held, satisfactorily, the grade/rank of SGT/E-5. a. He served two tours of active-duty service. He initially entered the Army on August 17, 1983, and served honorably until his discharge June 16, 1987, (see attached DD Form 214). During this tour he was honorably discharged as SGT/E-5. He then entered the US Army Reserves and served until August 16, 1989. While in Army Reserves, he continued to hold the rank of SGT/E-5. He was honorably discharged on August 16, 1989, (see attached Honorable Discharge Certificate). b. He had a break in service, and he re-entered the Army, April 23, 1991, under a special program called 18X. This program allowed prior service personnel such as him to re-enlist into the Army Special Forces. Under this program, he came back in as an SPC/E-4 with his rank increasing to SGT upon successful completion of his training. He graduated from SFAS (Special Forces Assessment and Selection), and he began his training as an 18D, (Special Forces Medic) at Fort Sam Houston. c. During this training, he was severely injured during an Airborne Operation jump on April 29, 1992. He was medically discharged on April 5, 1993, (see DD form 214) as a E-4. His discharge was medical, and he was rated at 20% through the Army. He hired an attorney, and he fought his rating to get a medical retirement and won his appeal in 2021 through the Army Board of Corrections. His disability rating was increased to 50%. It has taken him 28 years to get his discharge changed from a medical discharge to a permanent medical retirement retro effective April 6, 1993, with all benefits and back pay starting on that date. Attached as are his retirement orders 314-1112 dated November 10, 2021. He has also enclosed his DD Form 215. d. He makes his argument based on the section of his permanent order which states, Other eligible laws 1372. Under this law it states the following: “§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: (1) 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 (2) 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 (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 which was found to exist as a result of a physical examination. (4) 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. e. He makes his argument stating that he falls under section 2. In section 2, he has served satisfactorily as an E-5. He is respectfully asking that his retirement grade/rank be changed to SGT/E-5. He held this rank with honor and pride without any disciplinary actions. He asks the Board to change his orders to reflect his retirement rank as an E-5. 2. Review of the applicant’s service records shows: a. He initially enlisted in the Regular Army on 17 August 1983, and he held military occupational specialty (MOS) 54E, NBC Specialist. b. The oredrs promoting him to SGT/E-5 are not available for review with this case. c. He was honorably released from active duty on 16 June 1987 in accordance with paragraph 16-8 (reduction in authorized strength) of Army Regulation (AR) 635-200 (Personnel Separations), and he was transferred to the U.S. Army Reserve to complete his remaining service obligations. His DD Form 214 for this period shows in: * Blocks 4a (Grade, Rate or Rank) SGT and 4b (Pay Grade) E-5 * Block 12h (Effective Date of Pay Grade) 1985-10-01 d. He was ultimatly honorabley discharged from the U.S. Army Reserve on 16 August 1989 and was issued an Honorable Discharge Certificate, reflecting his garde of SGT. e. He enlisted in the Regular Army on 23 April 1991. His Enlistment Contract is not available for review with this case. f. His DA Form 2-1 (Personnel Qualification Record) shows his rank as of 23 April 1991 as “SP4/E-4” and his adjusted date of rank to E-4 as 8 August 1989. g. He completed the Basic Airborne Course at Fort Benning, GA around May 1991, and the Special Forces Assessment and Selection at Fort Bragg, NC, around September 1991. On 8 October 1991, he was assigend to Fort sam Houston for completion of a phade of MOS 18D, SF Medical Sergeant. h. He was injured during a parcahute accident on 24 April 1992 when his parachute became tangled with another jumper and collapsed resulting in a 50-foot fall, landing on his buttocks and extended hands. He sustained bilateral wrist fracture dislocations and a compression fracture of the 12th thoracic spinal vertebra in this fall. He ultimatly entered the disability evaluation system. i. A medical evaluation board (MEB) reviewed hs medicak records and diagnosed him with left wrist dorsal fracture dislocation status post closed fixation, right wrist dorsal fracture dislocation status post open reduction internal fixation acute right carpal tunnel syndrome status post repair with nerve contusion, compression fracture (40 percent compressed) 12th thoracic vertebral body with residual functional impairment of pain and stiffness, requiring a profile with lifting restriction. The MEB referred him to a physical evaluation board (PEB). j. In informal PEB convened on 20 January 1993 and found the applicant physically unfit for duty due to pain in right wrist status post fracture/dislocation with open reduction and fixation, pain in left wrist status post fracture, and closed reduction/fixation, and low back pain status post T-12 fracture (40 percent compressed). The PEB recommended a combined disability rating of 20% and his disposition as separation with severance pay. He non-concurred. k. A formal PEB convened on 8 February 1993 and reconsidered his case. The formal PEB reaffirmed the prior finding of unfitness and rating at 20% with his dispositiona s separation with severance pay. He concurred. l. The applicant was honorably discharged from active duty on 5 April 1993. His DD Form 214 for this period shows he was discharged under the provisions of AR 635- 40, paragraph 4-24, (Physical Disability with severance pay). He completed 5 years, 9 months and 26 days of creditable active service and received $15,134.40 disability severance pay. His DD Form 214 for this period shows in: * Blocks 4a (Grade, Rate or Rank) SGT and 4b (Pay Grade) E-5 * Block 12h (Effective Date of Pay Grade) 1991-04-23 m. On 8 May 2020, the Board adjudicated his case in relation to medically retire him with entitlement to combat special related compensation. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommended his records be refered to the Office of The Surgeon General for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. n. the review by the Office of The Surgeon General Is not available for review. However, the records contain Orders 314-1112, issue dby Headquarters, U.S. Army North, Joint Base San Antonio on 10 November 2021 retiring the applicant due to disability, effective 5 April 1993, ata combined rating of 50% and placing him on the retired list on 6 April 1995 in his retired grade of SPC/23 April 1991 (Prior grade/Date of rank: SGT/01 October 1985). The Statute authorizing retirement: 10 USC 1201 and Other eligible laws: 10 USC 1372 o. On 26 November 2021, the applicant was issued a DD Form 215 that corrected his DD Form 214 ending on 5 April 1993 to show: * Permanent Retirement vice Discharge * Separation Code SFJ vice JFL * Reentry Code 4 vice 3 * Permanent Disability vice Disability with Severance Pay. ? BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board found sufficient evidence to show the applicant should be advanced on the retired list to the highest grade that he satisfactorily held (sergeant (SGT)/E-5) during active service. Therefore, the Board granted 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 is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records and Defense Finance and Accounting System (DFAS) of the individual concerned be corrected to show the applicant was advanced on the retired list to the highest grade that he satisfactorily held (sergeant (SGT)/E-5). 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, United States Code, § 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. (1) 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. (2) 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. (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 which was found to exist as a result of a physical examination. d. (4) 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. 2. Title 10, United States Code § 3964 states each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active 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 (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army. This section applies to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty). 3. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations, states: a. Section 3964, Title 10, United States Code (10 USC 3964) entitles certain retired members of the Army who are retired with fewer than 30 years of active service, when such member’s active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade served on active duty satisfactorily. The AGDRB reviews each case individually to determine the highest grade served on active duty satisfactorily. This is not an automatic advancement on the retired list. Section 3964 does not apply in retirement for nonregular service (reserve retirement) cases when the retiree was not on active duty (or, in the case of members of the National Guard, when the retiree was not on full-time National Guard duty) at the time of retirement. b. Section 3964 applies to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, were serving on active duty (or, in the case of members of the National Guard, were on full-time National Guard duty). These individuals are eligible for advancement on the retired list when their active service plus service on the retired list totals 30 years. Individuals to be placed on the retired list with at least 30 years of active service will be considered for immediate advancement on the retired list. “Highest grade served on active duty” is the grade to which a soldier was actually promoted and paid pursuant to a lawful promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001165 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1