IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110020569 


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 military records to show his retired rank as specialist (SPC), pay grade E-4.  He further requests an automatic promotion to sergeant (SGT), pay grade E-5 in conjunction with his retirement.

2.  The applicant states he was retired in the rank of private first class, pay grade E-3; however, he should have been retired as a SPC, pay grade E-4.  The applicant further argues that he should have been recommended and promoted automatically to SGT, pay grade E-5.  He cites paragraph 1-20, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) as the authority for this promotion.

3.  The applicant provides copies of:

* DA Form 4187 (Personnel Action), dated 22 May 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 24 September 2006
* Orders 7123010, Fort Gillem, Georgia, dated 3 May 2007
* Orders 129-151, State of Georgia, dated 9 May 2007
* Memorandum, Fort Benning, Georgia, dated 10 May 2007
* Unidentified form, 2nd or subsequent page, undated, Fort Benning, Georgia
* Orders 036-2208, Fort Benning, Georgia, dated 5 February 2009
* Enlisted Record Brief (ERB), dated 29 December 2008


CONSIDERATION OF EVIDENCE:

1.  DA Form 4187, dated 22 May 2006, as provided by the applicant, indicates he was advanced to the rank of PFC, pay grade E-3 with an effective date and date of rank (DOR) of 12 May 2006.

2.  A DD Form 214, ending on 24 September 2006, reports that the applicant:

	a.  entered active duty training (ADT) on 23 May 2006 in the rank of PFC, pay grade E-3 with a DOR of 12 May 2006;

	b.  completed ADT and was awarded military occupational specialty 13F (Fire Support Specialist);

	c.  completed 4 months and 2 days of creditable ADT; and

	d.  he was released from ADT with an honorable characterization of service.

3.  Orders 7123010, dated 3 May 2006, indicate the applicant enlisted in an active duty status for a 3-year period with a reporting date of 3 May 2007.

4.  Orders 129-151, dated 9 May 2007, indicate the applicant was discharged from the Army National Guard and as a Reserve of the Army, effective 2 May 2007.  On 10 May 2007, he was assigned to the 75th Infantry Regiment located at Fort Benning, Georgia.

5.  The unidentified partial form, provided by the applicant, indicates his commander provided a functional statement concerning the applicant.  In essence, the commander states that on 27 October 2008 the applicant arrived at the Warrior Transition Battalion (WTB), Fort Benning, Georgia.  Prior to his arrival he had been assigned to Headquarters and Headquarters Company, U.S. Army Infantry Center as a forward observer.  He was a very dependable and professional Soldier who always strived to do his best each day.  However, due to his medical condition, he had to take breaks more often than normal.  However, he made all formations and medical appointments.  He referred to the applicant as a SPC.

6.  The applicant's ERB, dated 29 December 2008, records his advancements as follows:

	a.  PFC on 12 May 2006; and

	b.  SPC on 1 December 2008.
7.  Orders 036-2208, Fort Benning, Georgia, dated 5 February 2009, released the applicant from assignment and duty because of a physical disability, effective 29 March 2009.  He was placed on the retired list effective 30 March 2009, in the rank of SPC, pay grade E-4.  These orders were subsequently amended by the following orders:

	a.  Orders 062-2241, Fort Benning, Georgia, dated 3 March 2009, changed the length of his service under Section 1405 from 2 years, 4 months and 3 days to 2 years, 4 months and 7 days; and

	b.  Orders 079-2251, Fort Benning, Georgia, dated 20 March 2009, changed his retired rank to PFC and his report date to 29 March 2009.

8.  The applicant's ERB, dated 26 March 2009, records his advancements as follows:

	a.  private (PV2) on 11 August 2008; and

	b.  PFC on 13 December 2008.

9.  The applicant's DD Form 214 ending on 29 March 2009 reports that:

	a.  he was a PFC effective 13 December 2008;

	b.  he was retired from active duty due to a temporary disability; and

	c.  he completed 1 year, 10 months, and 27 days of creditable active service during the period covered by the DD Form 214.

10.  On 28 October 2009, the staff of this Board administratively closed a previous case submitted by the applicant that related issues about his nonjudicial punishment (NJP) and his retired pay grade.  In that case, the applicant stated he received NJP in July 2008 for missing movement, dereliction of duty, and for falsification of a Government document.  He further stated that he had been reduced from PFC to PV2.  His appeal was denied.

11.  Army Regulation 600-8-19 (Promotions and Reductions) provides:

	a.  that a Soldier is in a nonpromotable status until the day of completion of the period of correctional custody, suspension, restriction, extra duty, and or suspended forfeiture of pay, whichever occurs later;

	b.  that the Automated Enlisted Advancement Report (Active Army) is the official instrument used by commanders to recommend Soldiers for advancement to SPC and below.  Advancements to PV2, PFC, and SPC will be made automatically by the Total Army Personnel database for posting to the automated personnel file and the master military pay file;

	c.  that the eligibility criteria for automatic advancement to PV2, PFC, and SPC will be as follows to:

		(1)  PV2 the requirement is 6 months time in service (TIS).

		(2)  PFC the requirements are 12 months TIS and 4 months time in grade (TIG).

		(3)  SPC the requirements are 24 months TIS and 6 months TIG.

		(4)  Soldiers must not be flagged or barred from reenlistment.

		(5)  Any Soldier reduced must be fully qualified (without waiver) for promotion to the next higher grade.

	d.  that promotions to SGT are executed in a semicentralized manner requiring the commander's recommendation and the Soldier's appearance before a board.  Promotions are subject to the needs of the Army by military occupational specialty (MOS).  These needs are established by a monthly promotion cutoff score published by the Department of the Army.  Accordingly, Soldiers must attain promotion cutoff scores that equal or exceed the monthly published score; and

	e.  that at paragraph 1-20 for the promotion of Soldiers pending referral to a MOS/medical retention board, medical evaluation board (MEB), or physical evaluation board (PEB):

		(1)  Soldiers who are pending referral to an MOS)/medical retention board under Army Regulation 600–60 or referral to an MEB under Army Regulation 
40–400 or PEB under Army Regulation 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

		(2)  Per the provisions of 10 USC 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.
		(3)  Per the provisions of 10 USC 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 Soldiers separation date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his retired rank as SPC, pay grade E-4.  He further requests an automatic promotion to SGT, pay grade E-5 in conjunction with his retirement.

2.  The available evidence and the applicant's statement convincingly show the applicant originally enlisted in the rank of PFC; however, he was reduced to PV2 effective 11 August 2008.  He was subsequently advanced to PFC effective 
13 December 2008.

3.  The governing regulation clearly states that Soldiers who are reduced must be fully qualified (without a waiver) for promotion to the next higher grade.  Accordingly, the applicant was last advanced to PFC on 13 December 2008, making him ineligible for advancement to SPC until he again attained 6 months TIG as a PFC.  However, he was retired approximately 3 months later.

4.  The applicant's argument that he should receive an automatic promotion to SGT based on his physical disability is without merit.  There is no evidence showing he ever met the basic eligibility requirements for promotion to SGT, or that he was ever recommended for such promotion, or he had appeared before a promotion board.  The regulatory provision he cites states that Solders with a physical disability who are on a recommended list for promotion will be retired in their promotable pay grade.  The applicant did not hold any such status at the time of retirement.

5.  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)                                         AR20110020569



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ABCMR Record of Proceedings (cont)                                         AR20110020569



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