RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060003618


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Rea Nuppenau                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be placed on the retired
list as specialist (SPC), E-4.

2.  The applicant states that he was eligible for promotion to E-4 on or
about 1 October 2001.  He states he was continually looked over and
unjustly punished due to a company grade Article 15 he received in the
summer of 2001 until his last day at Fort Riley in 2003.  He also states
that his unit did not flag him nor was he barred from reenlistment.

3.  The applicant provides a supplemental letter; his DA Form 3349
(Physical Profile); his Enlisted Record Brief; and his DD Form 214
(Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 June 1998 for a period
of five years.  He completed basic training and advanced individual
training and was awarded military occupational specialty 95B (Military
Police).

2.  The applicant was promoted to SPC, E-4 on 1 May 2000.

3.  Item 18 (Appointments and Reductions) on the applicant’s DA Form 2-1
(Personnel Qualification Record) shows he was reduced from SPC to PFC on
29 June 2001.  There is no record of nonjudicial punishment under Article
15, Uniform Code of Military Justice in his personnel records.

4.  He was placed on permanent profile on 26 November 2002 for left
shoulder pain (Parsonage Turner Syndrome) with a physical profile of
131111.  The physician directed that the applicant be referred to a Medical
Evaluation Board (MEB).  The MEB and Physical Evaluation Board (PEB)
proceedings are not available.

5.  Headquarters, 24th Infantry Division (Mechanized) and Fort Riley Orders
Number 157-0002, dated 6 June 2003, released the applicant from assignment
and duty because of physical disability on 12 June 2003 and placed him on
the Temporary Disability Retired List (TDRL) in the rank of private first
class (PFC).

6.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) on his DD Form
214 shows his rank and pay grade as “PFC”, “E-3.”  The effective date of
his pay grade is shown as 29 June 2001.

7.  Army Regulation 27-10 (Military Justice), in pertinent part, provides
the applicable policies for administration of nonjudicial punishment.
Paragraph 3-37 directs that the original of an Article 15 for Soldiers SPC
or corporal (CPL) and below (prior to punishment) will be filed locally in
unit nonjudicial punishment or unit personnel files.  Such locally filed
originals will be destroyed at the end of 2 years from the date of
imposition of punishment or on the Soldier’s transfer to another General
Court-Martial Convening Authority (GCMCA), whichever occurs first.

8.  Title 10, section 1372 states that any member of an armed force who is
retired for physical disability or whose name is placed on the TDRL is
entitled to the grade equivalent to the highest of the following:

      (1) the grade of rank in which he is serving on the date when his
name is placed on the TDRL or the date 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;
or

      (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.

9.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade
Determinations), paragraph 3-1 states, in the case of Enlisted Soldiers,
the Army Grade Determination Board will 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SPC, E-4 on 1 May 2000.

2.  The applicant’s Personnel Qualification Record shows he was reduced
from SPC to PFC on 29 June 2001.  There is no record of the Article 15 that
was imposed on 29 June 2001.  However, in the absence of evidence to the
contrary, it is presumed his reduction was in conformance with applicable
law and regulations.

3.  The applicant was placed on permanent profile in November 2002.  He was
retired from active duty (TDRL) on 12 June 2003 in the rank of PFC, E-3.

4.  However, the applicant was entitled to be separated from active duty by
reason of physical disability in the grade equivalent to the highest grade
or rank in which he served satisfactorily.  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.

5.  It appears that an injustice has occurred in this case.  The applicant
has been disadvantaged and it would therefore be equitable to advance him
back to SPC for disability compensation purposes.  In addition, since the
Article 15 would have been locally filed, it is presumed that the
underlying misconduct was probably not that serious or his command would
have taken other actions to permanently document his misconduct.

6.  Therefore, it would be equitable to correct the applicant’s records to
show he was released from active duty on 12 June 2003 as an E-3 and placed
on the TDRL as a SPC, E-4.

BOARD VOTE:

CD______  JP______  RN______  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 Headquarters, 24th Infantry Division (Mechanized) and
Fort Riley Orders Number 157-0002, dated 6 June 2003, to show he was
retired in the grade of rank of SPC.

2.  That the Defense Finance and Accounting Service pay to the applicant
all pay and allowances due as a result of the correction in paragraph 1,
above.




                                  Carmen Duncan_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003618                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061024                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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