IN THE CASE OF:	  

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20080017814 


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, in effect, that the DD Form 214 (Certificate of Release or Discharge from Active Duty) of his son, a former service member (FSM), be corrected to reflect his rank and pay grade of specialist/E-4 (SPC/E-4).

2.  The applicant states, in effect, that the FSM was promoted to SPC; however, a correction to his DD Form 214 (DD Form 215) was never issued to reflect this promotion. 

3.  The applicant provides his son's death certificate and DD Form 214, and a United States Army Southern Transition Point (USASTP) Memorandum, 
dated 10 June 1997, in support of his application.

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 FSM's record shows he enlisted in the Regular Army and entered active duty on 28 December 1994, and was trained in and awarded military occupational specialty 88M (Motor Transportation Operator).  

3.  The FSM's Personnel Qualification Record, dated 8 October 1996, confirms he was promoted to private first class/E-3 (PFC/E-3) on 28 November 1995.

4.  On 1 November 1996, a Physical Evaluation Board (PEB) determined the FSM was physically unfit for further service, assigned him a disability rating of 100 percent, and recommended his placement on the Temporary Disability Retirement List (TDRL). 

5.  On 3 November 1996, the FSM's father concurred with the PEB findings and recommendations on the FSM's behalf and on 20 December 1996, the PEB was approved on behalf of the Secretary of the Army.

6.  The FSM's Official Military Personnel File (OMPF) contains a Personnel Action (DA Form 4187), dated 7 November 1996, which confirms the FSM was promoted to SPC/E-4 on 1 December 1996, in accordance with Army Regulation 600-8-19.  

7.  On 20 December 1996, the FSM was honorably retired by reason of temporary disability and placed on the TDRL after completing a total of 1 year,
11 months, and 23 days of active military service.  The DD Form 214 he was issued at the time lists his rank as PFC in Item 4a (Grade, Rate or Rank) and his pay grade as E-3 in Item 4b (Pay Grade).  Item 12h (Effective Date of Pay Grade) contains an entry listing the applicant's DOR as 28 November 1995.

8.  Headquarters, 3rd Infantry Divisions (Mechanized) and Fort Stewart, 
Fort Stewart Georgia, Orders 002-0017, dated 2 January 1997, authorized the FSM's placement on the TDRL, effective 21 December 1996, in the retired grade of rank of PFC and also lists his rank as PFC in the standard name line.  These orders were amended by Orders 014-0028, dated 14 January 1997, which changed his rank in the standard name line and his retired grade to SPC.  

9.  On 10 June 1997, the Chief, of the USASTP, Fort Stewart, Georgia, requested issuance of a DD Form 215 to reflect the following changes to the FSM's DD Form 214:  Item 4a to read SPC, Item 4b to read E-4, and Item 12h to read 19961201.  No DD Form 215 was available in the applicant’s personnel record.


10.  On 6 April 2000, the PEB determined the FSM remained unfit and that his condition was sufficiently stable for final adjudication.  The PEB recommended the FSM be permanently retired with a combined disability rating of 100 percent; and on 28 April 2000, United States Army Physical Disability Agency (USAPDA) Orders D82-4 authorized the FSM's removal from the TDRL, effective 28 April 2000, and his placement on the Retired List, by reason of permanent disability, effective 29 April 2000.  These orders list the FSM's rank as PFC in the standard name line. 

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item DD Form 214 preparation instructions.  The instructions for items 4a and 4b state, in effect, to enter the rank and pay grade held by the member on the date of his separation.

12.  Army Regulation (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 1-19, states in pertinent part that Soldiers eligible for promotion up to SPC (recommended by their local CDR) will be promoted to the recommended grade by the local medical facility CDR if the following conditions are met: hospitalization is caused by disease or injury received in the line of duty or the terminal illness is verified by the medical facility CDR and the estimated life expectancy is 12 months or less. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's DD Form 214 should be corrected to reflect his proper rank and pay grade was carefully considered and found to have merit.  

2.  The evidence of record confirms the FSM was promoted to SPC/E-4 on 
1 December 1996, in accordance with Army Regulation 600-8-19, as evidenced by the DA Form 4187, dated 7 November 1996, USASTP Memorandum, dated 10 June 1997, and orders contained in the FSM record.  As a result, it would be appropriate and serve the interest of justice and equity to correct his record accordingly.

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 Item 4a, Item 4b and Item 12h of his DD Form 214 by deleting the current entries and replacing them with the entries "SPC", "E-4" and "19961201" respectively; and by providing the applicant a correction (DD Form 215) to the FSM's separation document that reflects these changes.




      _______ 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)                                         AR20080017814



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ABCMR Record of Proceedings (cont)                                         AR20080017814



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