IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006597 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged for disability in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. 

2.  The applicant states he has a memorandum for promotion to SGT/E-5.

3.  The applicant provides his DD Form 214 and a memorandum, dated 13 April 2009, Subject: Request for DD Form 215 (Correction to DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 September 2004 and held military occupational specialty 31B (Military Police).  He served in Kuwait/Iraq from 11 June 2005 to 12 February 2006.  He was promoted to SPC/E-4 on 1 April 2006. 

2.  On 11 March 2009, an informal physical evaluation board (PEB) convened at Fort Lewis, WA.  The PEB found his medical condition of postural orthostatic tachycardia syndrome prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 10% disability rating.  The PEB recommended that the applicant 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.
3.  On 24 March 2009, Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, published Orders 083-0004 ordering his discharge with entitlement to severance pay effective 21 June 2009 in the rank/grade of SPC/E-4, based on 4 years, 8 months, and 24 days of service.

4.  On 3 April 2009, Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, published Orders 093-0001 amending his discharge orders to show his discharge with entitlement to severance pay effective 21 June 2009 in his rank/grade of SGT/E-5, based on 4 years, 8 months, and 24 days of service.

5.  He was honorably discharged on 21 June 2009 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability.  The DD Form 214 he was issued shows he completed 4 years, 8 months, and 24 days of creditable active service. This form also shows in:

* item 4a (Grade, Rate or Rank) "SPC"
* item 4b (Pay Grade) "E-4"
* item 12i (Effective Date of Pay Grade) "2006  04  01"
* Item 18 (Remarks) - "Disability Severance Pay -- $21,276.00"

6.  On 8 July 2009, by memorandum to the U.S. Army Human Resources Command, an official at the Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, requested the applicant be issued a DD Form 215 as shown below.  The official stated that the applicant was promotable and his name appeared on the January 2009 promotion list.  Soldiers being medically separated from the military are promoted on their last day in the military. 

* Item 4b - "SGT"
* Item 12h - "2009  06  21"
* Item 18 - "Disability Severance Pay $23,349.00"

7.  There is no indication he was issued a DD Form 215.

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). 

9.  Army Regulation 600-8-19 (Enlisted Promotion and Reduction) provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(d) states per the provisions of Title 10, U.S. Code, section 1212, Soldiers who are 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. Further, the Soldier will be promoted to the designated grade effective the Soldier's separation date.

10.  Title 10, U.S. Code, section 1212 states upon separation from his armed force under section 1203 or 1206  of this title, a member is entitled to disability severance pay computed by multiplying the member’s years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c)), by the highest of the following amounts, listed in sub-sections a through d.  Subsection a pertains to twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when he is separated and in the grade and rank in which he was serving on the date when his name was placed on the temporary disability retired list, or if his name was not carried on that list, on the date when he is separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 28 September 2004 through 21 June 2009.  He was a promotable SPC/E-4 at the time of his disability discharge.  By law and regulation, Soldiers who are 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.  Further, the Soldier will be promoted to the designated grade effective the Soldier's separation date. 

2.  Therefore, he is entitled to correction of his records to show he was promoted to SGT/E-5 with an effective date and date of rank as 21 June 2009 and correction of his DD Form 214 to show his SGT/E-5 rank and grade.  Additionally, as a matter of clarification, his DD Form 214 should also be corrected to show the correct amount of disability severance pay.  

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* Deleting from items 4a, 4b, and 12h the entries "SPC," "E-4," and "2006  04  01" and adding the entries "SGT," "E-5," and "2009  06  21" respectively
* Deleting from item 18 the entry "Disability Severance Pay $21276.00" and adding the entry "Disability Severance Pay -- $23,349.00"



      _______ _   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)                                         AR20110006597



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ABCMR Record of Proceedings (cont)                                         AR20110006597



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