IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20120003249 


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 specialist (SPC)/E-4 instead of private first class (PFC)/E-3. 

2.  The applicant states that his grade was determined based on failure of the physical evaluation board liaison officer (PEBLO) in returning a statement or a record of nonjudicial punishment (NJP) within 10 days.  When the PEBLO actually submitted the paperwork, this was done in his presence.  But the individual (Chief, Special Actions, U.S. Army Physical Evaluation Board Agency (USPDA)) submitted the paperwork to the wrong email address and/or fax of the PEBLO.  

3.  The applicant provides:

* DD Form 214
* Memorandum, Subject: Grade Determination, from the USAPDA to the PEBLO
* Army Grade Determination Review Board (AGDRB) decision
* Memorandum, Subject: Grade Determination, from the USAPDA to the AGDRB
* Applicant’s statement of a request for grade determination
* PEBLO Grade Determination Checklist
* Memorandum from the U.S. Army Reserve Command verifying NJP
* Email Exchange
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 3 years and 20 weeks on 8 September 2004 and he held military occupational specialty 19D (Cavalry Scout). He served in Kuwait/Iraq from 1 September 2005 to 22 June 2006.  

2.  On 3 October 2007, Headquarters, U.S. Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX, published Orders 276-51 awarding him the Army Good Conduct Medal.  The orders listed his rank as a PFC.

3.  On 14 January 2010, the applicant completed a DD Form 93 (Record of Emergency Data).  He authenticated this form by placing his signature and rank of PFC in the appropriate block.

4.  On 14 October 2010, an official at the USPDA notified officials at the U.S. Army Medical Command (MEDCOM) to notify the applicant through the PEBLO to provide documentation regarding his grade, within 10 days.

5.  A MEDCOM official responded by submitting a grade determination statement to the USPDA.

6.  On 3 November 2011, by memorandum, an official at the U.S. Army cadet Command, Fort Knox, KY, stated that the applicant was reduced to PFC/E-3 as a result of Uniform Code of Military Justice action by his old unit, the 2nd Combat Aviation Brigade, Fort Bliss, TX, effective 21 April 2009.  However, there is no reduction order or DA Form 4187 (Personnel Action) on file.  This memorandum served as a record of the reduction.

7.  On 14 December 2011, an informal PEB convened at the National Capital Region, Arlington, VA, and found his medical condition of intervertebral disc 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 20% 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.

8.  On 11 January 2012, the applicant contested his grade and submitted a statement to the AGDRB requesting separation from the Army.  He stated that although his grade is shown as a PFC, he previously held the rank/grade of SPC/E-4.

9.  On 19 January 2012, by memorandum to the AGDRB, an official at the USPDA requested a determination of the applicant’s correct grade.  He stated that the applicant’s current grade is PFC/E-3 and that the applicant was reduced by NJP on 21 April 2009. 

10.  On 31 January 2012, the AGDRB considered his case.  After a thorough review of the applicant’s records, the AGRDB determined that the highest grade in which the applicant satisfactorily served for the purpose of computation of disability separation pay is the rank/grade he held on the date of separation (PFC/E-3).

11.  He was honorably discharged on 11 March 2012 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with entitlement to severance pay.  The DD Form 214 he was issued shows he completed 7 years, 6 months, and 4 days of creditable active service. This form also shows in:

* item 4a (Grade, Rate or Rank) "PFC"
* item 4b (Pay Grade) "E-3"
* item 12i (Effective Date of Pay Grade) "2009  04  21"

12.  Title 10, U.S. Code, section 1372 (Grade on retirement for physical disability) 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 1204 of this title, or whose name is placed on the disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

* the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired
* 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
* 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
* 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


DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 8 September 2004 to 11 March 2012.  The highest rank/grade he attained was SPC/E-4.  However, although his NJP action is not available for review with this case, an official verified the applicant received NJP action on 21 April 2009 that reduced him to PFC/E-3.  Therefore, he did not satisfactorily serve in the rank/grade of SPC/E-4.  

2.  By law, unless entitled to a higher retired grade under some other provision of law, a member of an armed force who is separated by reason of physical disability is entitled to the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is separated. 

3.  The applicant’s DD Form 214 correctly shows his rank and grade and he provides no evidence to show otherwise. 

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)                                         AR20120003249





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ABCMR Record of Proceedings (cont)                                         AR20120003249



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