IN THE CASE OF:
BOARD DATE: 9 December 2010
DOCKET NUMBER: AR20100015061
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank and pay grade as sergeant first class (SFC)/E-7.
2. The applicant states he was medically discharged during a promotion hearing for SFC. He worked very hard to earn his promotion which he was to receive in May 2006, but he did not receive his SFC rank at discharge.
3. He provided a DD Form 214; Orders 104-0030; Headquarters, National Training Center and Fort Irwin, dated 14 April 2006; and enlisted record brief.
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 records show he enlisted in the Regular Army on 20 August 1997 having prior service in the Regular Army and the Army National Guard. He held military occupational specialty 63B (Light Wheeled Vehicle Mechanic), served through multiple extensions or reenlistments in various staff or leadership positions, and attained the rank/grade of staff sergeant (SSG)/E-6.
3. On 17 February 2006, his records were considered by a medical evaluation board that referred him to a physical evaluation board (PEB). A PEB subsequently convened on 3 April 2006 and found his medical condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit. He was rated under the Veterans Affairs Schedule for Rating Disabilities and granted a percentage of disability rating. The PEB recommended he be separated with entitlement to severance pay if otherwise qualified. He concurred with the PEB's finding and recommendation and waived his right to a formal hearing on the same date.
4. Orders 104-0030, issued by Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, on 14 April 2006, ordered his discharge from active duty by reason of physical disability. The orders listed his rank as SSG in the standard name line and stated he would be discharged effective 8 May 2006 in pay grade E-6.
5. He was honorably discharged on 8 May 2006 by reason of disability with entitlement to severance pay. His DD Form 214 for the period ending 8 May 2006 shows his rank/pay grade as SSG/E-6 with an effective date of 1 April 2003. This form also shows he was entitled to or received $70,768.80 in severance pay.
6. There is no indication in the available records that shows he was in a promotable status at the time of his discharge.
7. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-19d, states that per Title 10, U.S. Code, section 1212, a Soldier on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. The Soldier will be promoted to the designated grade effective the Soldier's separation date.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his DD Form 214 to show his rank and pay grade as SFC/E-7 was carefully considered; however, there is insufficient evidence to support his request.
2. Regulatory guidance allows for the promotion of Soldiers separated for disability with severance pay provided they were on a promotion list at the time of separation. In the applicant's case, there is no evidence that shows he was promotable at the time of his separation. Absent such evidence there is an insufficient basis on which to grant award of the requested relief.
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 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) AR20100011759
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100015061
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130002474
Orders 344-0089, dated 10 December 2010, published by Headquarters, Fort Bliss amended Orders 029-0019, dated 29 January 2010, by changing his retired grade of rank from SSG to SFC. Order Number D254-12, dated 10 September 2012, removed him from the TDRL on 10 September 2012, and on the date following he was permanently retired in the rank of SFC. The evidence of record shows the applicant was medically retired on 19 February 2010 and was placed on the TDRL in the rank of SSG.
ARMY | BCMR | CY2014 | 20140006746
He was retired on 25 September 2012, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), by reason of permanent disability. The evidence of record shows he was a promotable SFC as of 4 February 2011. Army Regulation 600-8-19, paragraph 1-20a, states Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.
ARMY | BCMR | CY2012 | 20120011739
He states he understands that Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states service in a grade will not be considered to have been satisfactory when reversion to a lower grade was for prejudice or cause due to misconduct, caused by nonjudicial punishment, or the result of court-martial. On 15 June 2006, in ABCMR Docket Number AR20050013950, the Board considered the applicant's request for correction of his record to show he retired in pay...
ARMY | BCMR | CY2014 | 20140004385
The applicant requests correction of his records to show he was promoted to sergeant first class (SFC)/pay grade E-7. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 1 (Introduction), paragraph 1-20 (Promotion of Soldiers pending referral to a Military Occupational Specialty Medical Retention Board, MEB, or PEB), shows that per the provisions of Title 10, U.S. Code, section 1212 (Disability severance pay), Soldiers who are on a promotion list at the time of separation...
ARMY | BCMR | CY2014 | 20140016547
U.S. Army Garrison, Fort Eustis, Military Personnel Division, Fort Eustis issued the following orders: * Orders 149-0011, dated 29 May 2009 - placed him on the Retired List by reason of permanent disability effective 28 July 2009. Therefore, his DD Form 214 should be amended to show he was an SFC, pay grade E-7 with an effective date of grade of 27 July 2009. Showing he was promoted to SFC/pay grade E-7 effective 27 July 2009. b. Amending his DD Form 214 with a separation date of 27 July...
ARMY | BCMR | CY2009 | 20090004881
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant's record shows that he was medically retired due to a permanent physical disability. The applicant's record contains no evidence and he has failed to provide any evidence that shows he was considered, selected, and subsequently promoted to the rank of SFC.
ARMY | BCMR | CY2013 | 20130000310
The applicant provides his DD Form 214 and retirement orders, physical disability information report, and acceptance notification of E-7 promotion. Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the Armed Forces), states unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary...
ARMY | BCMR | CY2010 | 20100006948
The applicant has not provided sufficient evidence to change his DD Form 214 to show he was separated from active duty due to a permanent disability. While the applicant was promoted to SFC, pay grade E-7, his promotion occurred after he was retired from active duty. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Showing he was placed on the TDRL on 17 November 1998 in pay grade E-7 * Showing he was placed on the...
ARMY | BCMR | CY2006 | 20060006982C070205
The applicant’s Enlisted Record Brief shows he was on a recommended promotion list to SFC as of 1 November 2004. DISCUSSION AND CONCLUSIONS: The evidence of record shows the applicant was on a recommended promotion list to SFC, E-7 when he was separated for disability on 19 August 2005. Richard Dunbar________ CHAIRPERSON INDEX |CASE ID |AR20060006982 | |SUFFIX | | |RECON |YYYYMMDD | |DATE BOARDED |20061207 | |TYPE OF DISCHARGE |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR) | |DATE OF DISCHARGE...
ARMY | BCMR | CY2010 | 20100011759
The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as sergeant first class (SFC)/ E-7. The evidence shows the Maryland Army National Guard issued promotion orders promoting the applicant to SFC/E-7 effective 27 January 2010 per regulatory and statutory guidance, prior to release from active duty on 28 January 2010. As a result, the Board recommends that the State Army National Guard records and all Department of the...