IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20110023034 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* staff sergeant (SSG) vice sergeant (SGT) in item 4a (Grade, Rate, or Rank)
* E-6 vice E-5 in item 4b (Pay Grade)
* 27 August 2009 vice 5 February 2006 in item 12b (Separation Date This Period)

2.  The applicant states the information shown on her DD Form 214 is incorrect.

3.  The applicant provides her retirement orders, dated 7 November 2005, 10 November 2005, and 27 August 2009.

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 records show she enlisted in the Regular Army on 30 January 1996 and held military occupational specialty 91G (Patient Administrative Specialist).  She was promoted to the rank of SGT on 13 April 2000.  She was assigned to the Eisenhower Army Medical Center, Fort Gordon, GA.

3.  In March 2005, she was diagnosed with multiple sclerosis.

4.  On 30 September 2005, a medical evaluation board (MEB) convened and diagnosed her as having multiple sclerosis with bilateral optic neuritis.  The MEB recommended her referral to a physical evaluation board (PEB).  On 17 October 2005 after being counseled on her rights, she agreed with the board's findings.

5.  On 26 October 2005, an informal PEB convened at Fort Sam Houston, TX, and confirmed her unfitting disability of multiple sclerosis with fatigue, gait abnormality, optic neuritis, and urinary symptoms.  The PEB found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit for duty.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8018 and assigned a 30-percent disability rating.  The PEB recommended her retirement and placement on the Temporary Disability Retired List (TDRL) because her condition was not sufficiently stable for final adjudication.  On 31 October 2005 after being counseled on her rights, she concurred with the board's findings and waived her right to a formal hearing.

6.  Orders 311-0916, dated 7 November 2005, issued by Headquarters, U.S. Army Garrison, Fort Gordon, GA, retired her from active duty because of physical disability incurred while entitled to basic pay effective 5 February 2006 and placed her on the TDRL in the rank of SGT effective 6 February 2006.

7.  Orders 314-0900, dated 10 November 2005, issued by Headquarters, U.S. Army Garrison, Fort Gordon, GA, amended Orders 311-0916 and placed her on the TDRL in the rank of SSG.

8.  Her DD Form 214 shows she was retired from active duty on 5 February 2006 in the rank/pay grade of SGT/E-5 by reason of temporary disability.  Item 12h (Effective Date of Pay Grade) shows her date of rank as 13 April 2000.  She completed 10 years and 6 days of creditable active service.

9.  On 6 February 2006, she was placed on the TDRL in the rank of SSG.

10.  On 14 July 2009, a TDRL PEB convened in Washington, DC, and confirmed her unfitting disability of multiple sclerosis.  She was rated under the VASRD code 8018 and assigned a 30-percent disability rating.  The PEB recommended her permanent retirement for disability.  On 25 August 2009 after being counseled on her rights, she concurred with the board's findings and waived her right to a formal hearing.

11.  Orders D240-06, dated 27 August 2009, issued by the U.S. Army Physical Disability Agency removed her from the TDRL because of permanent physical disability and placed her on the Retired List effective 27 August 2009.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20c, states that under the provisions of Title 10, U.S. Code, section 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.

13.  Army Regulation 635-5 (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 the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It states a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was promoted to the rank of SGT on 13 April 2000.  It is reasonable to presume she was in a promotable status to SSG at the time she was retired from active duty on 5 February 2006 due to temporary disability.  In accordance with applicable regulations, she was placed on the TDRL on 6 February 2006 in the rank of SSG.

2.  However, the regulation also stipulates the Soldier will be promoted to the designated grade effective the day before placement on the Retired List; therefore, she should have been promoted to SSG on 5 February 2006.  As a result, she is entitled to correction of her DD Form 214 to show her rank/pay grade as SSG/E-6 effective 5 February 2006.

3.  With respect to her request to have her DD Form 214 corrected to show her separation date as 27 August 2009, the DD Form 214 is a record of active Army service on the date of release or retirement.  She was temporarily retired from active duty on 5 February 2006 which is correctly reflected on her DD Form 214.  The governing regulation states DD Forms 214 are not prepared for Soldiers removed from the TDRL.  Therefore, she is not entitled to this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214 as follows:

* deleting the entry shown in item 4a and replacing it with "SSG"
* deleting the entry shown in item 4b and replacing it with "E-6"
* deleting the entry shown in item 12h and replacing it with "2006  02  05"

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains showing her separation date as 27 August 2009.



      ____________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)                                         AR20110023034



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ABCMR Record of Proceedings (cont)                                         AR20110023034



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