RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  28 June 2007
	DOCKET NUMBER:  AR20060012360 


	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.


	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, correction to his rank and pay grade to Private First Class/E-3 on the Retired List.  

2.  The applicant states, in effect, that for the past 5 years he has been paid as a Private/E-2.  He also states that his medical board papers listed him as a Private/E-2 and the error needing correcting is his rank.  When he was discharged from the service he was a Private First Class/E-3.  He also states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) retirement identification card and promotion orders state his grade as a private first class/E-3.  

3.  The applicant provides copies of a Memorandum For Record (MFR), his DA Form 4187 (Personnel Action), his Certificate of Promotion, his DD Form 214, and his DD Form 215 (Correction to DD Form 214), in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, effective 23 June 1999, for 3 years.  His record do not show when he was promoted to Private/E-2.

2.  On 23 March 2001, the applicant appeared before a Medical Evaluation Board (MEB).  The MEB found the applicant had the following medical condition: Asthma, moderate, with an approximate date of origin of 2000.  The MEB ruled the condition was incurred while entitled to base pay, did not exist prior to service, and was not permanently aggravated by service.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant concurred with the findings and recommendation of the MEB on 18 April 2001 and elected not to continue on active duty.

3.  The applicant submits a copy of a MFR, dated 25 June 2001, that shows Captain _________, assumed command of Bravo Company, 7th Battalion, 159th Aviation Regiment, APO, AE, effective the same date.

4.  On 9 July 2001, Captain ________ initiated a DA Form 4187 recommending approval of the applicant's promotion to Private First Class/E-3 with an effective date and date of rank of 1 July 2001. 


5.  The applicant was issued a Certificate of Promotion, dated 1 July 2001, promoting him to Private First Class/E-3, effective the same day.

6.  On 25 July 2001, a PEB convened and considered the applicant's condition of moderate Asthma, on daily inhalational therapy.  Based on a review of the medical evidence of record, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and specialty.  The condition had not stabilized to the point that a permanent degree of severity could be determined.  The PEB granted a disability level of 30 percent and placed the applicant on the Temporary Disability Retired List (TDRL) with reexamination in January 2003.

7.  The applicant was issued Orders Number D165-12, dated 24 August 2001, releasing him from assignment and duty because of physical disability and placement on the TDRL, in pay grade E-2, effective 23 November 2001, with 30 percent disability.  These orders also showed the applicant's disability retirement was based on 2 years, 4months, and 29 days service, under the authority of Title 10, United States Code 1202.

8.  The applicant was separated, for the purpose of retirement, in the rank and pay grade of Private First Class/E-3, effective 23 November 2001, under the provisions of Army Regulation 635-40, paragraph 4-24b(2), for temporary disability.  He was credited with 2 years, 4 months, and 29 days net active service.  He was transferred to the Retired Reserve.  The DD Form 214 states that he did not complete his first full term of service.

9.  On 29 September 2006, a PEB convened and considered the applicant's condition of Asthma.  Based on review of the TDRL examination, the PEB found that the applicant remained unfit to reasonably perform the duties required by previous grade and military specialty.  The applicant's current condition was considered sufficiently stable for final adjudication.  The PEB granted a disability level of 30 percent and permanent disability retirement.  On 7 October 2006, the applicant concurred with the findings and recommendation of the PEB and waived his rights to a formal hearing.

10.  The Defense Finance and Accounting Service, Retired Pay Branch, verified that the applicant's retired rank and pay grade as Private/E-2.

11.  Army Regulation 600-8-19, in effect at the time, prescribes the policies and procedures for the promotion and reduction of Enlisted Soldiers.  Paragraph 
1-23b, specifies that the promotion certificate is not the official instrument of promotion.  The promotion orders will be used as the source for grade, effective date, and date of rank for all record and pay purposes.

12.  Title 10, United States Code, section 1372, provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that at the time any member of an armed force who is retired for physical disability or whose names in placed on the TDRL, is entitled to a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the Retired List, or the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a correction to his rank and pay grade to Private First Class/E-3 on the Retired List. He has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The applicant's contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  His records do not contain promotion orders for his promotion to Private First Class/E-3 and he was placed on the TDRL in the rank and pay grade of Private, E-2.  His records also show he completed medical separation processing while in pay grade of E-2 and was separated for permanent disability in that same grade.  It is further noted his retired pay records show his retired grade and pay as Private/E-2.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

___J____  __DAC__  ___WFC_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




____John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20060012360
SUFFIX

RECON

DATE BOARDED
2007/06/28
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.09
2.

3.

4.

5.

6.