DOCKET NUMBER:  AR20080018519 


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:

The applicant, in effect, defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of an earlier request that the applicant be promoted to sergeant/E-5.  

2.  Counsel also requests, as new issues, that the applicant's rank be restored to specialist/E-4; that all counseling statements indicating the applicant lacked the required security clearance be removed from his military records; that his disability rating be increased to 30 percent (i.e., a medical retirement) or in the alternative, grant him a full and fair Physical Evaluation Board (PEB) hearing; that a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 9 February 2005, be removed from his military records; and that any and all references to an Article 15 be removed from his military records.   

3.  Counsel states, in effect, that the applicant was discharged for medical reasons on 7 September 2004 and that he received severance pay instead of a medical retirement due to an erroneous assessment of his injuries by an informal PEB which the applicant was not given a proper opportunity to rebut.  In February 2005, approximately six months after separating and receiving a DD Form 214 (Certificate of Release or Discharge from Active Duty) that stated his


pay grade at separation was E-4, the applicant was notified that he was reduced 
in rank to pay grade E-3 due to an unspecified event on 5 August 2004.  Counsel states that the applicant has suffered financial hardship due to these multiple errors. 

4.  Counsel states that the applicant was unjustly reduced in pay grade with no explanation or lawful justification, that the applicant was never informed of this reduction until he received a DD Form 215 more than six months after his discharge, and that this reduction affected his entitled earnings and compensation for his disabilities.  He contends the applicant suffered an injustice when he was not considered for promotion to E-5 in February 2004, that his command repeatedly counseled him that he was not eligible for promotion because he lacked the requisite security clearance, and that his records clearly indicate he was granted his Top Secret clearance on 13 January 2004.  As of that date, the applicant was eligible for promotion and should now be promoted with a date of rank of 1 February 2004 based on his records up to that date.  He points out that although the applicant received some derogatory counseling statements in March 2004 and later, those cannot be held against him when considering his promotion eligibility for 2004.

5.  Counsel further states that the applicant served in the Army twice and received honorable discharges for both periods of service.  He indicates that the applicant reenlisted in 2002 as a result of the 11 September attacks against the United States and his belief that he had a patriotic duty to support and defend the Constitution of the United States.  He also states that the applicant's enlistment was cut short due to an injury incurred while training in the line of duty, that his injuries were not the result of his misconduct, that his injuries resulted in permanent disabilities, and that he was permanently injured while training with the Army in support of his country.

6.  Counsel provides 31 enclosures outlined on page 10 of his memorandum in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier Army Board for Correction of Military Records (ABCMR) decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Since the 

applicant's request for promotion to sergeant/E-5 was previously considered by the Board on 10 November 2005 and his request for reconsideration was received on 3 November 2008, this portion of his request will not be discussed further in these Proceedings, as it is untimely.  

2.  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 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.

3.  The applicant’s new requests that his rank be restored to specialist/E-4; that all counseling statements indicating he lacked the required security clearance be removed from his military records; that his disability rating be increased to 
30 percent (i.e., a medical retirement) or in the alternative, grant him a full and fair PEB hearing; that a DD Form 215, dated 9 February 2005, be removed from his military records; and that any and all references to an Article 15 be removed from his military records will be considered by the Board. 

4.  The applicant enlisted in the Regular Army on 5 January 1988.  He served as an infantryman and was released from active duty on 5 April 1991.  

5.  On 12 March 2002, the applicant enlisted in the Regular Army for a period of 4 years.  

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 April 2003, states the applicant injured his hip during physical training.

7.  On 11 December 2003, the applicant was issued a permanent 3 physical profile based on his medical condition of left hip and low back pain.  The DA Form 3349 (Physical Profile) issued to him at the time indicated he was being recommended for a Medical Evaluation Board (MEB).  

8.  On 17 December 2003, the applicant was counseled regarding the status of his security clearance.  He was informed that the formal investigation process through the Central Clearance Facility (CCF) could take from six to eighteen 


months and that his local interim clearance had expired.  He was also notified that based on his pending MEB, his commander recommended no further action be taken on his security clearance.  

9.  On 12 February 2004, the applicant was counseled regarding his failure to qualify for attendance at the promotion board.  He was informed that he was unable to compete for promotion because he did not possess a top secret clearance, which was required for his military occupational specialty (MOS).

10.  On 19 February 2004, the Chief, Assistance Division, Department of the Army (DA), Office of The Inspector General (OTIG), responded to a Member of Congress regarding the applicant’s security clearance.  The DAIG representative informed the Member of Congress that the applicant’s command properly notified the Defense Investigative Service that the background check on the applicant's top secret clearance need not be continued due to his impending medical discharge.  

11.  On 8 March 2004, an MEB diagnosed the applicant with chronic left hip and lower back pain.  

12.  On 9 March 2004, a DA Form 5248 (Report of Unfavorable Information) shows the applicant was command-referred to the mental health clinic for an evaluation based on his verbal expressions of anger.  The applicant was held overnight for observation.  He was diagnosed with an adjustment disorder, with mixed disturbance of emotions and conduct, and it was recommended his access be suspended.  The commander recommended the applicant’s security clearance be revoked. 

13.  On 9 March 2004, the applicant was counseled regarding his promotion.  He was informed that he was not being recommended for promotion because of his lack of leadership qualities, history of derogatory counseling, and his inability to control his anger.  

14.  On 25 March 2004, the applicant concurred with the MEB findings and recommendation, and his case was referred to a PEB.   

15.  On 9 April 2004, an informal PEB found the applicant physically unfit due to chronic left hip pain due to anterior femoroacetabular impingement (slipped capital femoral epiphysis) with limited range of motion (10 percent) and chronic low back pain secondary to multilevel degenerative disc disease (zero percent).  


The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 23 April 2004, the applicant did not concur with the PEB’s findings and recommendation and demanded a formal hearing.   

16.  On 25 May 2004, an informal PEB reconsideration found the applicant physically unfit due to chronic left hip pain due to anterior femoroacetabular impingement (slipped capital femoral epiphysis) with limited range of motion    (10 percent) and chronic low back pain secondary to multilevel degenerative disc disease (10 percent).  The PEB recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  On 25 May 2004, the applicant concurred with the PEB’s findings and recommendation and waived a formal hearing.   

17.  On 17 June 2004, the U.S. Army Physical Disability Agency approved the PEB’s findings and recommendation.

18.  On 7 September 2004, the applicant was separated by reason of physical disability with severance pay (20 percent).  His DD Form 214 shows his rank and pay grade as specialist/E-4.  

19.  A DD Form 215, dated 9 February 2005, amended the applicant's DD Form 214 to show, among other items, that his rank/grade was private first class (PFC)/E-3 and that he had been reduced to that rank effective 5 August 2004.      

20.  A review of the applicant’s Official Military Personnel File (OMPF) on the interactive Personnel Electronic Records Management System (iPERMS) does not reveal any Article 15s.  (As an E-4, any Article 15 the applicant received would have been filed in his local files and not in his OMPF.)  However, the applicant provided an undated DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) which shows his command was considering whether he should be punished under Article 15 for the following misconduct which occurred in March 2004:  two specifications of failure to go to his appointed place of duty, using disrespectful language toward a noncommissioned officer, and disobeying a lawful order.  This form is incomplete. 

21.  The applicant's OMPF on iPERMS does not contain any counseling statements.

22.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

24.  Paragraph 3-3 of Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) states that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was an E-4, his highest grade served, at the time he was being processed for disability separation and therefore was not entitled to review by the AGDRB.  

2.  The applicant's contention that he was unjustly reduced to E-3 was carefully considered.  The DD Form 215 shows the applicant was reduced to private first class on 5 August 2004.  The applicant provided an incomplete Article 15 for misconduct in March 2004, and no Article 15 is filed in his OMPF.  However, as an E-4 any Article 15 he received would have been filed in local files and not in his OMPF.  Therefore, the lack of an Article 15 in his OMPF is not evidence that he did not receive one.  In the absence of evidence to the contrary, it must be presumed that this reduction in rank was administratively correct and in conformance with applicable regulations.  Therefore, there is no basis for granting the applicant's request that his rank be restored to E-4 or that the DD Form 215 be removed from his military records.      

3.  Since the applicant's OMPF on iPERMS does not contain any counseling statements, there is no basis for granting his request to remove counseling statements from his military records.

4.  The applicant's contention that he received severance pay instead of a medical retirement due to an erroneous assessment of his injuries by an informal PEB which he was not given a proper opportunity to rebut was noted.  However, evidence of record shows the applicant did not concur with the informal PEB’s findings and recommendation and demanded a formal hearing.   Subsequently, an informal PEB reconsideration recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  On 25 May 2004, the applicant concurred with these findings and recommendations and waived a formal hearing.  There is insufficient evidence to show he was not afforded an opportunity to rebut the findings of the informal PEB reconsideration.
5.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.   Therefore, there is no basis for granting the applicant's request for a medical retirement or another PEB hearing.  

6.  Since the applicant's OMPF on iPERMS does not contain an Article 15, there is no basis for granting his request to remove an Article 15 from his military records.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  __x_____  ___x____  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.



      __________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)                                         AR20080018519



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ABCMR Record of Proceedings (cont)                                         AR20080018519



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