IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100020180 


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 records to show he was advanced/
promoted to private first class (PFC)/E-3.

2.  The applicant states he was recommended for promotion to E-3 in May 2010. 
However, no action was taken for 3 months and he ultimately retired by reason of physical disability as a private (PV2)/E-2.  He was recommended for promotion by his company commander and company first sergeant (1SG) prior to retirement, but the promotion never happened.  He was not flagged (suspension of favorable personnel actions) and met the criteria for this promotion.  This error has and will continue to cause him a financial loss.

3.  The applicant provides:

* Enlisted Record Brief (ERB)
* email exchange with his 1SG
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 14 September 2005 and held military occupational specialty 11B (Infantryman).  His last assignment was with Company A, 2nd Battalion, 12th Cavalry Regiment, Fort Hood, TX.

2.  His records show he served in Korea from 28 February 2006 to 28 February 2007 and in Afghanistan from 26 June 2008 to 24 June 2009.

3.  Section III (Service Data) of his ERB shows he was advanced/promoted or reduced through the ranks as follows:

* advanced/promoted to PFC/E-3 on 13 September 2006
* advanced/promoted to specialist or corporal (CPL) on 14 September 2007
* reduced to private/E-1 on 1 May 2009
* advanced/promoted to PV2/E-2 on 14 January 2010

4.  On 11 May 2010, a physical evaluation board (PEB) determined he had an unfitting medical condition.  The PEB rated him at 50 percent for post-traumatic stress disorder and recommended placing him on the Temporary Disability Retired List with reexamination in February 2011.  He concurred.  His rank is listed as an E-2 on the PEB proceedings.

5.  On 19 May 2010, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 139-0104 releasing him from duty effective 27 July 2010 and placing him on the Retired List in the rank/grade of PV2/E-2 effective 28 July 2009.

6.  He was honorably retired on 27 July 2010 by reason of temporary disability.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) - "PV2"
* item 4b (Pay Grade) - "E-2"
* item 12i (Effective Date of Pay Grade) - "2010  01  14"

7.  He submitted an exchange of email with his former 1SG which shows his former 1SG recommended him for advancement/promotion to PFC/E-3 in May 2010 and every month after that.  The former 1SG also stated that there were problems with processing the applicant's and other Soldiers' promotions at the battalion S-1.

8.  Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability:  Members of Armed Forces), states that 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 Disability Retired List under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  The grade or rank in which he is serving on the date when his name is placed on the Temporary Disability Retired List or, if his name was not carried on that list, on the date when he is retired.

	b.  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired.

	c.  The permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

	d.  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was initially advanced/promoted to PFC/E-3 on 13 September 2006.  He was advanced/promoted to the rank/grade of CPL/E-4 on 14 September 2007, but he was reduced to PVT/E-1 on 1 May 2009.  The facts and circumstances that led to his reduction are not available for review with this case.  He was advanced/promoted to PV2/E-2 on 14 January 2010.

2.  He submitted an exchange of email with his unit 1SG who stated that he recommended him for promotion to PFC/E-3, but the promotion never took effect. 
However, there is no official document in his records that shows he was advanced/promoted to PFC/E-3 or that his commander, the promotion authority, recommended him for promotion.

3.  Nevertheless, his records indicate he satisfactorily performed his duties as a PFC/E-3 between the date he was advanced/promoted to this rank/grade (13 September 2006) to the date he was advanced/promoted to CPL/E-4 (14 September 2007).  By law, having been retired by reason of physical disability, he would have been entitled to retirement at the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired.

4.  Therefore, his records should be corrected to show he was placed on the Retired List in the rank/grade of PFC/E-3 on 28 July 2010.  He is also entitled to back retired pay as a result of this correction.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  amending Orders 139-0104, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, on 19 May 2010, to show the "Retired Grade or Rank" as "PFC"; and

	b.  auditing his pay records and paying him any back retired pay as a result of this correction.




      ____________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)                                         AR20100020180



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ABCMR Record of Proceedings (cont)                                         AR20100020180



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