IN THE CASE OF:
BOARD DATE: 5 May 2011
DOCKET NUMBER: AR20100025025
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 his rank be restored to sergeant (SGT)/E-5, payment of all back pay and allowances, and adjustment of his disability severance pay.
2. The applicant states he was promoted SGT in October 2009. He was later told that his promotion was erroneous because he was in a non-promotable status while undergoing a Medical Evaluation Board (MEB). The local Finance office informed him that there was no transaction showing he was promoted to SGT or reduced to SPC. He separated on 26 April 2010 as a specialist (SPC)/ E-4. After he was discharged he discovered that his promotion was valid and he should not have been removed.
3. The applicant provides a promotion order, dated 30 September 2009, issued by the Special Troops Battalion, V Corps, Germany.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he enlisted in the Regular Army on 18 June 1999 and held the military occupational specialty (MOS) 11B (Infantryman) during his period of service.
2. His Enlisted Record Brief (ERB) shows his date of rank to SPC as 20 March 2008 and date of rank to SGT as 1 July 2003.
3. His records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 20 March 2008, for dereliction of duty which reduced him to SPC as part of his punishment.
4. The applicant provides orders which show he was promoted to SGT effective 1 October 2009.
5. His official military personnel file (OMPF) is void of orders promoting him to SGT, effective 1 October 2009.
6. On 29 March 2010, an informal PEB convened in Washington, DC. The PEB found the applicant's 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 VA Schedule for Rating Disabilities (VASRD), assigned code 9402, and granted a 10% disability rating. The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified. The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on 12 April 2010.
7. He was honorably discharged on 26 April 2010 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with entitlement to severance pay. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 10 years, 10 months, and 9 days of active service.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his rank be restored to sergeant (SGT)/E-5, payment of all back pay and allowances, and adjustment of his disability severance pay.
2. The evidence of record shows the applicant was reduced from SGT to SPC on 20 March 2008 as the result of an UCMJ action. The record is void of any documentation to show he was promoted to SGT on 1 October 2009 or that the promotion was revoked due to MEB processing. The promotion orders provided by the applicant are insufficient evidence to corroborate he was promoted. Without evidence to show he was actually promoted to SGT, an error or injustice cannot be determined and no corrective action can be taken.
3. In view of the above, the applicant's request should be denied.
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) AR20100025025
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ABCMR Record of Proceedings (cont) AR20100025025
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