RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20060017581


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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 his record be corrected to show
he was promoted to Specialist (SPC) in conjunction with his disability
retirement.

2.  The applicant states, in effect, that Soldiers who are processed for
separation through the Army Physical Disability Evaluation System (PDES),
which includes the Military Occupational Specialty Medical Retention Board
(MMRB), Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB),
will not be denied promotion on the basis of a medical disqualification.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 23 September 2003.  On 23 September 2003, he was
promoted to private first class (PFC).

2.  On 15 February 2005, the applicant's unit commander completed a
performance statement pertaining to the applicant for the PEB.  In this
statement, the commander stated that the applicant was under a temporary
profile as a result of suffering from heat stroke.  He stated that based on
the applicant's limitations, he was unable to perform his required duties.
He further indicated the applicant was pending no adverse actions.  The
unit commander did not indicate the applicant had been recommended for
promotion in his unit at the time he prepared this statement.

3.  On 6 May 2005, a PEB convened in Washington D.C. to consider the
applicant's case.  The PEB found the applicant was physically unfit to
perform his duties and recommended a combined disability rating of 30
percent.  The applicant concurred with the PEB findings and recommendation.

4.  On 19 May 2005, XVIII Airborne Corps and Fort Bragg Orders Number 139-
0293, directed the applicant's REFRAD on 15 August 2005, and his placement
on the Temporary Disability Retired List (TDRL) on 16 August 2005.  These
orders stipulated that the applicant would be placed on the TDRL in the
rank of PFC.  On 15 August 2005, the applicant was separated accordingly.
The separation document (DD Form 214) he was issued confirms he held the
rank of PFC on the date of his separation and that he had completed a total
of 1 year,
10 months and 23 days of active military service.
5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army's current enlisted promotion and reduction policy.
Paragraph 1-20 contains guidance on promotion of Soldiers pending referral
through the Army's PDES  to an MMRB. MEB or PEB.  It states, in pertinent
part, that Soldiers who are pending referral to an MMRB. MEB or PEB will
not be denied promotion (if already promotable) on the basis of medical
disqualification if they are otherwise qualified for promotion.  It further
states that under the provisions of Title 10 of the United States Code,
Section 1372 (10 USC 1372) Soldiers on a promotion list at the time of
retirement for disability will be retired for disability at the promotion
list grade.  Further, the Soldier will be promoted to the designated grade
effective the day before placement on the retired list.

6.  Section II of the promotions and reductions regulation provides
guidance on processing promotions to private/E-2 (PV2), PFC and SPC.  It
states, in pertinent part, that the time in service (TIS) requirement for
promotion to SPC is 24 months and the time in grade (TIG) requirement is 6
months.  Commanders may promote Soldiers to SPC with waivers when the
Soldier had completed 18 months TIS and 3 months TIG.  The regulation
stipulates that automatic promotions to SPC are made when a Soldier has 24
months TIS and 6 months TIG.

7.  10 USC 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 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, which includes the TDRL; the highest grade in
which he served satisfactorily; or the grade to which he would have been
promoted had it not been for the physical disability that resulted in
retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that he should have been promoted to SPC in
conjunction with processing through the Army's PDES and his disability
retirement was carefully considered.  However, there is insufficient
evidence to support granting the requested relief.

2.  The applicant's record, which includes a commander's performance
statement dated 15 February 2005, provides no indication that the applicant
was on an order of merit list, or was pending promotion to SPC in his unit
at the time he entered the Army's PDES.

3.  The performance statement submitted by the applicant's unit commander
to the PEB on 15 February 2005, gave no indication that the commander had
recommended the applicant for promotion to SPC as of that date, and there
is no evidence of a subsequent unit commander promotion recommendation on
file in his record.

4.  By regulation, in order to qualify for automatic promotion to SPC
absent a recommendation from the unit commander, a Soldier must have
completed
24 months of TIS and 6 months in grade.  Although the applicant had
completed the TIG requirement, he did not complete the 24 month TIS
requirement for automatic promotion to SPC.  The DD Form 214 he was issued
upon his disability retirement confirms he completed a total of just 1
year, 10 months and 23 days of active military service.  Therefore, absent
any indication that he was recommended for or scheduled to be promoted to
SPC in his unit at the time he entered the PDES, there is an insufficient
evidentiary basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM__  __WFC__  __DAC  _  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                 |AR20060017581                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/28                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/08/15                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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