BOARD DATE: 18 March 2014 DOCKET NUMBER: AR20130013028 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 27 May 2005, to show his rank and pay grade as sergeant (SGT)/E5 instead of specialist (SPC)/E4. 2. The applicant states his DD Form 214 lists his last rank as E4; however, he was retired in the rank of E5. He has the orders promoting him to E5. He would like to have an accurate DD Form 214. 3. The applicant provides copies of his Orders Number 157-0004, 2005 DD Form 214, and Orders Number D-087-25. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the U.S. Army Reserve (USAR) on 26 July 2002. He was promoted to SPC on 4 December 2003. 3. He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 7 December 2003. He served in Iraq from 22 February 2003 through 15 July 2003, a period of 4 months and 23 days. 4. Orders Number 138-0001, issued by U.S. Army Garrison, Fort Belvoir, VA, dated 18 May 2005, retired him in the rank of SPC/E4. 5. His record contains and he provided a copy of Orders Number 157-0004, issued by the U.S. Army Garrison, Fort Belvoir, dated 6 June 2005, amending Orders Number 138-0001 to show his permanent retired rank as SGT/E5 with an effective date of 27 May 2005. 6. He was discharged from active duty on 27 May 2005, by reason of temporary disability and was placed on the Temporary Disability Retired List (TDRL). His DD Form 214 lists in: * Item 4a-– SPC * Item 4b - E4 * Item 12h (Effective Date of Pay Grade) - 4 December 2003 7. He also provided a copy of Orders Number D-087-25, issued by the U.S. Army Physical Disability Agency, dated 27 March 2008, removing him from the TDRL and permanently retiring him in the rank of SGT. 8. Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214. It states the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty. The regulation states items 4a and 4b will list the active duty grade or rank and pay grade at time of separation. Item 12h will list the effective date for the grade shown in items 4a and 4b. DISCUSSION AND CONCLUSIONS: The applicant was retired by reason of physical disability and placed on the TDRL on 27 May 2005. Items 4a and 4b of his DD Form 214 list his rank as SPC/E4. On 6 June 2005, orders were issued amending his retired rank to SGT with an effective date of 27 May 2005. On 27 March 2008, he was removed from the TDRL and permanently retired in the grade of SGT. Therefore, items 4a, 4b, and 12h of his 2005 DD Form 214 should be corrected to show his rank and grade as SGT/E5 and effective date of 27 May 2005. BOARD VOTE: __X__ ___X_____ __X______ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 the applicant's DD Form 214 ending on 27 May 2005 to show in items: * 4a - SGT * 4b - E5 * 12h - 27 May 2005 _______ _ X_______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20130013028 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130013028 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1