IN THE CASE OF:	  

		BOARD DATE:  17 May 2012

		DOCKET NUMBER:  AR20110020464 


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 retired by reason of disability in the rank/grade of specialist (SPC)/E-4 instead of private (PV1)/E-1.

2.  The applicant states:

* he held the rank/grade of SPC/E-4 for 24 months – he held the rank/grade of PV1/E-1 for only 9 months prior to his retirement
* his medical board processing finished quicker than anticipated and did not allow enough time for the review and restoration of his rank
* there was a shortage of noncommissioned officers to review his records at the time due to a training exercise being held in Wyoming
* he served honorably from June 2007 to 22 March 2010
* he is a disabled veteran from Operation Iraqi Freedom
* he had his bachelor's degree and held the rank of SPC/E-4 for 2 years
* when he joined Company A, 2nd Battalion, 30th Infantry Regiment, 4th Brigade, 10th Mountain Division, he was shipped to Kuwait 5 days later
* he was discriminated against by his squad leader who called him "college puke" and disciplined him for any infraction
* he was wounded by an improvised explosive device in March 2008
* he had ammunition on his person with which he intended to return fire after they commenced shooting
* he did not own a weapon in that caliber


* he made an idiot's error
* he accepted nonjudicial punishment (NJP) and was told he would have his rank restored; however, no attempts were made to do this and the discrimination towards him continued
* he is eligible to be buried at Arlington National Cemetery and he does not want "private" on his headstone when he served through the war as an SPC

3.  The applicant provides self-authored statements and a copy of his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve in the rank/grade of SPC/E-4 on 5 May 2007 under the Delayed Enlistment Program (DEP).  On 24 June 2007, he was discharged from the DEP and enlisted in the Regular Army (RA) in the rank/grade of SPC/E-4.  He completed training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while on active duty was SPC/E-4.

2.  He served in Kuwait/Iraq during the period 27 November 2007 through 8 October 2009.

3.  On 1 July 2009, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully appropriating 250 9-millimeter rounds, military property of a value of less than $500.00.  His NJP included a reduction in rank/grade to PV1/E-1.  He elected not to appeal his punishment.

4.  On 17 February 2010, a physical evaluation board (PEB) found the applicant unfit and recommended his permanent disability retirement with a 40-percent disability rating.

5.  On 19 February 2010, the applicant concurred with the PEB findings and waived his right to a formal hearing.

6.  Orders 055-0316, Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, LA, dated 24 February 2010, show the applicant was retired on 22 March 2010 and placed on the Retired List in the rank/grade of PV1/E-1 on 23 March 2010.

7.  His DD Form 214 shows he was retired by reason of permanent disability in accordance with Army Regulation 635-40, chapter 4.  This form also shows he completed 2 years, 8 months, and 28 days of creditable active military service.

8.  Title 10, U.S. Code, section 1372, 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 section 1204 of this title, or whose name is placed on the TDRL under section 1202 or section 1205 of this title, 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, if his name was not carried on that list, on the date when he is retired;

	b.  the highest temporary grade of 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.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states to enter the active duty grade or rank and pay grade at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for restoration of his rank/grade to SPC/E-4 was carefully considered.

2.  The applicant enlisted in the RA in the rank/grade of SPC/E-4.  His record shows he was reduced to the rank/grade of PV1/E-1 on 1 July 2009 for misconduct.  Therefore, he did not serve satisfactorily in the rank/grade of SPC/E-4.

3.  The PEB determined he was physically unfit for further military service and recommended his permanent disability retirement with a 40-percent disability rating.  He agreed with the PEB's findings and recommendation.

4.  He retired on 22 March 2010 in the rank/grade of PV1/E-1, the grade of rank in which he was serving on the date of his retirement.  As such, there was neither an error nor an injustice.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110020464



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ABCMR Record of Proceedings (cont)                                         AR20110020464



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