IN THE CASE OF:	  

		BOARD DATE:	    21 September 2010

		DOCKET NUMBER:  AR20100011161 


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 the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty):

	a.  date of separation changed from 18 August 2002 to 15 March 2005;

	b.  rank and pay grade changed from private first class (PFC)/E-3 to specialist (SPC)/E-4;

	c.  nearest relative information changed from an address in Debary, Florida, to an address in Calumet, Michigan; and

	d.  narrative reason for separation changed to show he was permanently retired.

2.  The applicant states he was permanently retired on 15 March 2005.  He contends the wrong rank was entered at the time the form was prepared and that he remarried on 12 March 2006.

3.  The applicant provides his DD Form 214 and orders removing him from the Temporary Disability Retirement List (TDRL) effective 16 March 2005 in support of this 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 applicant enlisted in the Regular Army on 25 May 1999.  He completed initial entry training and was awarded military occupational specialty 67T (UH-60 Helicopter Repairer).

3.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows he was promoted to PFC effective 20 November 2000.  There is no entry in item 18 indicating he was promoted to SPC.

4.  On 9 March 2002, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) does not list the punishment imposed.  This DA Form 2627 shows his rank as PFC.

5.  A DD Form 2697 (Report of Medical Assessment), dated 13 March 2002, shows his rank as PFC and a DD Form 2648 (Preseparation Counseling Checklist), dated 21 March 2002, shows his grade as E-3.

6.  His Physical Evaluation Board Proceedings, dated 24 June 2002, show his rank as SPC.

7.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, Permanent Orders 095-074, dated 5 April 2002 awarded him the first award of the Army Good Conduct Medal.  These orders show his rank as SPC.

8.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, Orders 184-0003, dated 3 July 2002, directed his release from assignment and duty because of physical disability effective 18 August 2002.  These orders show his rank as PFC.

9.  The applicant's official military personnel file (OMPF) is void of orders showing he was promoted to the rank and grade of SPC/E-4.

10.  On 18 August 2002, he was released from active duty by reason of temporary disability and placed on TDRL the following day.  Item 4a (Grade, Rate, or Rank) of his DD Form 214 shows his rank as PFC.  Item 12 (Separation Date this Period) shows he was separated on 18 August 2002.  Item 19b (Nearest Relative) shows a name and address in Debary, Florida.  Item 28 (Narrative Reason for Separation) shows "disability, temporary."

11.  U.S. Army Physical Disability Agency Orders D75-04, dated 16 March 2005, removed the applicant from the TDRL and permanently retired him effective 17 March 2005.  These orders show his rank as SPC.

12.  Title 10, U.S. Code, section 1202, provides that if a member would be qualified for retirement for disability, but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's OMPF contains several documents showing he held the rank of PFC/E-3 as well as SPC/E-4 during similar time periods.  His separation orders show his rank as PFC and there are no orders available in his OMPF showing he was promoted to SPC/E-4.  In the absence of promotion orders or a leave and earnings statement showing he held the rank of SPC/E-4 at the time of his separation, it cannot be established conclusively that he held the rank of SPC/E-4 at the time the DD Form 214 was prepared.  As result, it must be presumed there is no error in his DD Form 214 pertaining to the rank he held at the time of separation.

2.  He was retired from active duty on 18 August 2002 due to temporary disability and was placed on the TDRL the following date.  On 16 March 2005, he was removed from the TDRL and permanently retired effective 17 March 2005.  His DD Form 214 was properly prepared with the correct separation date and narrative reason for separation when he was retired due to temporary disability on 18 August 2002.  His removal from the TDRL and permanent retirement for physical disability was merely an administrative action.  There is no error regarding his separation date or narrative reason for separation as shown on his DD Form 214.

3.  He also requests that the nearest relative shown on his DD Form 214 be changed due to his marriage years after his separation from active duty.  However, the DD Form 214 is a synopsis of a Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  He has not shown through the evidence provided that the entry on his DD Form 214 was incorrect at the time the DD Form 214 was prepared and issued.

4.  In view of the above, there is no basis to grant 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)                                         AR20100011161



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ABCMR Record of Proceedings (cont)                                         AR20100011161



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