IN THE CASE OF:	  

		BOARD DATE:	    8 January 2013

		DOCKET NUMBER:  AR20120004772 


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 records to show she was promoted to staff sergeant (SSG)/E-6.  

2.  She states:

	a.  the U.S. Army Personnel Command (PERSCOM) (currently known as the U.S. Army Human Resources Command (HRC)) provided the Calendar Year (CY) 2001 Sergeant (SGT), Reserve Component (RC)/Active Guard Reserve (AGR) Promotion Board Results with her name on the list.  

	b.  she was going through the medical board process at the time, but she wasn't allowed to receive the promotion she worked so hard to receive and her name was removed from the promotion list.  

	c.  while serving on active duty as an AGR Soldier for eight years, HRC selected her for promotion to the rank of SSG/E-6.  She held the rank of SGT for seven years and she was fully qualified to be selected to the rank of SSG.

	d.  she was anticipating being promoted until she received a phone call from her branch manager stating her name would be removed from the promotion list because she was going through the medical board.  Her branch manager also stated that some of the Soldiers were getting promoted because they deserved it.

	e.  while going through the medical board she was battling an illness and she used her strength to investigate her chances of fighting for her rank and accepting what the branch manager had informed her.  

	f.  it took over two years for the medical board to reach a conclusion to place her on the Temporary Disability Retirement List (TDRL).  She remained on the TDRL for five additional years until she was fully retired in February 2007.  It was not until recently that she was informed she could have been promoted and retired in the rank of SSG and not a SGT.  

3.  She provides:

* Certificate of Retirement, dated 10 February 2007
* CY01 SSG, RC/AGR Promotion Board Results
* Reassignment orders, dated 2 April 2002
* Orders releasing her from assignment and duty due to physical disability, dated 2 April 2002
* Amendment orders, dated 22 March 2000
* Orders removing her from the TDRL, dated 9 February 2007
* Letter, dated 6 December 2006, from the U.S. Army Physical Evaluation Board

4.  She indicated on her application that she provided a DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)); however, this document is not available.  

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 enlisted in the Regular Army on 11 October 1988 and she was released from active duty on 26 November 1990.  On the following day, she transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  She was ordered to active duty in an AGR status on 7 August 1994.  

4.  She was promoted to SGT on 8 February 1995.  

5.  Her Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings are not available.

6.  Her name is listed on the CY01 SSG, RC/AGR Promotion Board Results with a sequence number of 163.  

7.  On 10 May 2002, she was released from assignment and duty because of physical disability in the rank of SGT.  On the following day, she was placed on the TDRL at a disability rating of 30 percent.  The DD Form 214 issued to her at the time shows in:

* item 4a (Grade, Rate, or Rank) "SGT"
* item 4b (Pay Grade) "E5"
* item 12h (Effective Date of Pay Grade) "1995 02 08"

8.  Orders D040-01, dated 9 February 2007, published by the U.S. Army Physical Disability Agency removed her from the TDRL because of permanent physical disability and on the date following, she was permanently retired in the rank of SGT.  

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Department of the Army Promotions, HRC, Fort Knox, KY who stated:

	a.  the applicant's request was approved.

	b.  the applicant made the 2001 by-name list and should have been promoted to SSG with an effective date of 1 October 2001.

	c.  the applicant will need to present these findings and promotion orders to the Defense Finance and Accounting Service office to receive any back pay and allowances.

10.  A copy of the advisory opinion was forwarded to the applicant to allow her to provide comments.  On 11 December 2012, she concurred with the advisory opinion.  
11.  Orders 12-11-324001, dated 20 November 2012, published by HRC, Fort Knox, promoted her to SSG with a date of rank and effective date of 1 October 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements regarding her entitlement to show she was promoted to SSG are acknowledged and determined to have merit.

2.  The evidence of record shows the applicant had been selected for promotion to SSG by the CY01 SSG, RC/AGR Promotion Board and was entitled to be retired in that grade on 10 May 2002.

3.  HRC-Fort Knox published orders on 20 November 2012 that show the applicant was promoted to SSG, effective 1 October 2001.

4.  Therefore, it would be appropriate to amend the applicant's DD Form 214 and retirement orders to show she was retired in the rank/pay grade SSG/E-6.  

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending items 4a, 4b, and 12h of her DD Form 214 to show she was retired in the rank/pay grade of SSG/E-6 with an effective date of pay grade as 1 October 2001;

	b.  amending Orders C-04-290495, dated 2 April 2002, to show her retired grade as SSG/E-6; 

	c.  amending Orders D040-01, dated 9 February 2007, to show her rank as SSG on the standard name line; and

	d.  paying her any due back pay and/or retired pay as a result of these corrections.



      _______ _   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)                                         AR20120004772





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004772



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1