BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007368 


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, correction of his records and DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as corporal (CPL), pay grade E-4.

2.  The applicant states, in effect, that his records and DD Form 214 show his rank as private first class (PFC), pay grade E-3, and he was promoted to CPL, pay grade E-4, on 31 May 2005.

3.  In support of his application, the applicant provides his Armed Forces of the United States Army Identification (ID) Card (copied for the Record of Proceedings) and a DA Form 4187 (Personnel Action).

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 applicant's military records show he enlisted in the Army Reserve Delayed Entry Program on 23 January 2003.  He enlisted in the Regular Army in pay grade E-1 on 16 September 2003 for 6 years.  He completed basic combat and advanced training and was awarded military occupational specialty (MOS) 11B (infantryman).  He was advanced to the rank of PFC, pay grade E-3, on 1 April 2005.

3.  The applicant submits a copy of a DA Form 4187 which shows Captain ____ initiated a personnel action on 31 May 2005 requesting and approving the lateral promotion of the applicant from the rank of specialist, pay grade E-4, to the rank of CPL, pay grade E-4, with an effective date and date of rank of 31 May 2005.  He also submits his identification card issued on 1 June 2005 which shows his rank as CPL, pay grade E-4.

4.  The applicant was honorably separated from active duty and placed on the Temporary Disability Retired List (TDRL) on 14 October 2005.  Item 4a (Grade, Rate, or Rank) of the applicant's DD Form 214 shows the rank PFC.  Item 4b (Pay Grade) of his DD Form 214 shows pay grade E-3.  Item 12h (Effective Date of Pay Grade) of his DD Form 214 shows the date 2005  04  01 [1 April 2005].  He was credited with 2 years and 29 days of net active service.

5.  On 26 March 2009, an informal physical evaluation board (PEB) determined that the applicant's condition as a result of multiple residuals from an improvised explosive device blast injury in February 2005 in Iraq had not improved to the extent that he was fit for duty.  The PEB found the applicant physically unfit and recommended a combined rating of 100 percent and that he be separated for permanent disability retirement.  On the same day, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing. The PEB proceedings show the applicant's rank as PFC.

6.  On 3 April 2009, the U.S. Army Physical Disability Agency issued Orders D093-19 removing the applicant from the TDRL and placing him on the Retired List in the rank of PFC.

7.  On 2 May 2006, in an unrelated request submitted to this Board, the applicant identified himself as a PFC, pay grade E-3.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.  Paragraph 1-10(l) specified that a Soldier in the rank of PFC was non-promotable to the higher grade when undergoing medical evaluation processing to determine ability to perform in the recommended MOS.  Once a PEB determined that a Soldier was no longer qualified for continued active service, he/she would be removed from the promotion list.  Paragraph 1-21a(2) specifies that if the local commander can establish that a Soldier was on the recommended promotion list before placement on the TDRL, and met the cutoff score while on the TDRL, he/she will be promoted.  The promotion will be accomplished within 30 days from the date of return to active duty.

9.  Army Regulation 600-8-19, Paragraph 2-3, also specified that the time in grade requirements for promotion to SPC is 6 months.  Promotion to SPC may be waived at 3 months.  

10.  Title 10, U.S. 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 any member of an Armed Force who is retired for physical disability or whose name is placed on the TDRL is entitled to a grade equivalent to the highest of the following:  (1) the grade in which he/she is serving on the date when his or her name is placed on the TDRL or on the date when he/she is retired, or (2) the highest temporary grade in which he/she served satisfactorily from which he/she is retired, or (3) the permanent regular grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired.

11.  Army Regulation 635-5 (Separation Documents) provides instructions for the preparation of the DD Form 214.  It states, in pertinent part, that items 4a, 4b, and 12h will list the rank, pay grade, and effective date of pay grade for the current pay grade.

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 CPL, E-4, 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 show he was advanced to pay PFC, pay grade E-3, on 1 April 2005.  Based the time in grade requirement for promotion to CPL/ SPC, pay grade E-4, his eligibility date would have been 1 July 2005, with a waiver, or 1 October 2005 (6 months).  Therefore, without meeting the time in grade requirements, he would not have been promoted to CPL as early as 31 May 2005.  

3.  While the applicant was undergoing PEB processing, there was ample opportunity to for him to correct his rank and pay grade and to ensure that he was an E-4 and retired in the correct pay grade.  The evidence shows he was placed on the TDRL in the rank and pay grade of PFC, E-3.  He completed medical separation processing while in the rank of PFC and was separated for permanent disability in that same grade.

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

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)                                         AR20090007368



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ABCMR Record of Proceedings (cont)                                         AR20090007368



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