IN THE CASE OF:	  

		BOARD DATE:	    15 December 2011

		DOCKET NUMBER:  AR20110009541 


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 record to show he was retired in the rank/grade as a sergeant (SGT)/E-5 instead of specialist (SPC)/E-4 in accordance with the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-21 (Former temporary disability retired list (TDRL)) personnel.

2.  The applicant states he was not aware of the provisions of this particular section of the regulation nor was he informed by his recruiter.  As a result, he contends he was not afforded an opportunity for promotion under this provision when he processed into the U.S. Army Reserve through the Military Entrance Processing Station in St. Louis, MO, nor at his current unit of assignment.

3.  The applicant provides:

* an extract from Army Regulation 600-8-19
* a Reservation Report Letter
* 3 W-2 Forms (Wage and Tax Statement) for tax years 2008, 2009, and 2010
* a DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement) for pay date 14 June 1999

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 record shows he enlisted in the Regular Army on 16 June 1998 for a period of five years in the rank/grade of private (PV1)/E-1.  He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  

3.  Item 18 (Appointments and Reductions) on the applicant’s DA Form 2-1 (Personnel Qualification Record) shows rank/grade history as follows:

* advanced from PV1/E-1 to private (PV2)/E-2 on 16 December 1998
* advanced from PV2/E-2 to private first class (PFC)/E-3 on 1 August 1999
* advanced  from PFC/E-3 to SPC/E-4 on 1 May 2000
* reduced from SPC/E-4 to PFC/E-3 on 29 June 2001

4.  There is no record of nonjudicial punishment under Article 15, Uniform Code of Military Justice in his personnel records.

5.  His record contains a DA Form 3349 (Physical Profile) which shows he was placed on permanent profile on 26 November 2002 for left shoulder pain (Parsonage Turner Syndrome) with a physical profile of 131111.  The profiling physician directed that the applicant be referred to a Medical Evaluation Board (MEB).  The MEB and Physical Evaluation Board (PEB) proceedings are not available for review.  

6.  His record contains a DD Form 2648 (Preseparation Counseling Checklist), dated 6 January 2003, which shows his rank/grade at the time was PFC/E-3.

7.  Orders Number 157-0002 issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Riley on 6 June 2003, released the applicant from assignment and duty because of physical disability on 12 June 2003 and placed him on the TDRL in the rank/grade of PFC/E-3.  

8.  His record contains an Enlisted Record Brief, dated 11 June 2003, which contains the following pertinent information:

* Section A (Qualification Data) shows that he did not hold a promotable status at the time
* Section C (Assignment Information) shows he was pending retirement, release, or separation and he was in a non-deployable status
* Section I (Service Data) shows he held the rank/grade of PFC/E-3 since 29 June 2001 and his previous rank/grade was SPC/E-4

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 June 2003 contains the following pertinent information:

* Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) shows his rank and pay grade as PFC/E-3
* Item 12h (Effective Date of Pay Grade) shows the effective date of his pay grade as 29 June 2001
* Item 18 (Remarks) shows he was discharged from enlisted status in the retired grade of PFC/E-3
* Item 23 (Type of Separation) shows "Retirement"
* Item 25 (separation Authority) shows Army Regulation 635-40, paragraph 4-24b(2)
* Item 28 (Narrative Reason for Separation) shows "Disability, Temporary"

10.  The applicant's record is void of any evidence and he did not provide any evidence showing he appeared before a board for consideration of promotion to the rank/grade of SGT/E-5 at any time during his service or that he was in a promotable status to the rank/grade of SGT/E-5 at the time he was retired and placed on the TDRL.

11.  The applicant's Official Military Personnel File contains an ABCMR record of proceedings which shows he petitioned for correction of his records to show he was retired and placed on the TDRL in the rank/grade of SPC/E-4 instead of PFC/E-3.  It was noted that Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 3-1, which states, "in the case of Enlisted Soldiers, the Army Grade Determination Board will determine the highest grade in which a Soldier has served satisfactorily for purpose of service/physical disability retirement, computation of retired pay, or separation for physical disability.  The ABCMR granted him relief based upon the appearance that he had not been afforded an opportunity for the Army Grade Determination Board to review his record and determine the highest grade in which he had served satisfactorily.  As a result, his record was corrected to show he was retired and placed on the TDRL in the rank/grade of SPC/E-4.


12.  The applicant provides:

	a.  an extract from Army Regulation 600-8-19 which provides that if the local commander can establish that a Soldier returning to active/Reserve duty from the TDRL was on the promotion recommended list prior to being placed on the TDRL, and met a cutoff score while on TDRL the Soldier will be promoted within 30 days from the date of return to active/Reserve duty.  The regulations also provides that if the local commander cannot establish that the Soldier held prior list status, the promotion authority will convene a selection board to consider the TDRL returnee within 60 days of the Soldier's assignment to his or her command.
If the board recommends the Soldier for promotion and the promotion authority approves the board's recommendation, he or she will be added to the unit's recommended list.

	b.  a Reservation Report Letter which shows he was scheduled to attend training in military occupational specialty 31B (Military Police) on 11 December 2007 in conjunction with his enlistment in the U.S. Army Reserve.

	c.  3 W-2 Forms (Wage and Tax Statement) for tax years 2008, 2009, and 2010.

	d.  a DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement) for pay date 14 June 1999 which shows he held the rank/grade of SPC/E-4 at the time.

13.  Army Regulation 27-10 (Military Justice), in pertinent part, provides the applicable policies for administration of nonjudicial punishment.  Paragraph 3-37 directs that the original of an Article 15 for Soldiers SPC or corporal (CPL) and below (prior to punishment) will be filed locally in unit nonjudicial punishment or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority (GCMCA), whichever occurs first.  

14.  Title 10, section 1372 states that any member of an armed force who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the highest of the following:

	a.  the grade of rank in which he is serving on the date when his name is placed on the TDRL or the date 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; or 

	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.  

15.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 3-1 states, in the case of Enlisted Soldiers, the Army Grade Determination Board will determine the highest grade in which a Soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or separation for physical disability.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence clearly shows the applicant was reduced from SPC/E-4 to PFC/E-3 on 29 June 2001.  There is no record of the Article 15 that was imposed on 29 June 2001.  However, in the absence of evidence to the contrary, it is presumed his reduction was in conformance with applicable law and regulations. 

2.  The applicant was subsequently retired from active duty on 12 June 2003 and placed on the TDRL in the rank/grade of PFC/E-3.  

3.  The fact that the ABCMR previously corrected his record to show he was retired and placed on the TDRL in the rank/grade of SPC/E-4 as a matter of equity is noted.

4.  However, the applicant's record is void of any evidence and he did not provide any evidence showing he appeared before a board for consideration of promotion to the rank/grade of SGT/E-5 at any time during his service or that he was in a promotable status to the rank/grade of SGT/E-5 at the time he was retired and placed on the TDRL.  Therefore, there is no basis for granting him 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 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)                                         AR20110009541





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ABCMR Record of Proceedings (cont)                                         AR20110009541



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