IN THE CASE OF:	  

		BOARD DATE:	   6 December 2012

		DOCKET NUMBER:  AR20120008478


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:

* award of the Purple Heart and Bronze Star Medal 
* his rank as sergeant (SGT) and his pay grade as E-5

2.  The applicant states:

* he was placed on the Temporary Disability Retired List (TDRL) and promoted to the rank of SGT on the same day
* he was permanently retired on 6 July 2011; however, all of his documents show his rank as specialist (SPC) and his pay grade as E-4
* while in Iraq from 2005 to 2006, he was involved in several improvised explosive device (IED) explosions
* on 15 November 2005, the vehicle he was riding in set off an IED
* he was treated and administered medication for injuries that resulted from that IED blast, mainly back injuries and head trauma
* his Theater Medical Registry Record was not signed by the attending physician; however, he could not have received that level of treatment from a combat medic
* when he deployed back to the United States he was evaluated by a doctor who signed his DD Form 2796 (Post-Deployment Health Assessment)
* after returning from Iraq, he applied for the Purple Heart but was denied because his Theater Medical Registry Record was not signed by the attending physician
* he did not receive any paperwork related to the denial of his Purple Heart request
* he is currently receiving disability pay from the Department of Veterans Affairs (VA) for injuries he sustained in the line of duty
* he is also requesting an investigation into the Bronze Star Medal for his actions after IED blasts that occurred throughout his combat deployment

3.  The applicant provides:

* Medical Command (MEDCOM) Test Form 1381 (Theater Medical Registry Record), dated 15 November 2005
* DA Form 2823 (Sworn Statement) from SPC Jxxxx A. Hxxxxxxx, dated 
17 June 2008
* DD Form 2796, dated 10 December 2005
* DD Form 214
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period of service ending on 6 September 2008
* Orders D187-40, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, dated 6 July 2011

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 requested award of the Purple Heart and correction of his      DD Form 214 to show this award.  Although he contends his previous request for the Purple Heart was denied, there is no evidence to support this contention, nor is there evidence to show he submitted his request to the Commander, U.S. Army Human Resources Command (AHRC-PDO-PA), 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  Therefore, barring evidence to the contrary, he 

has failed to exhaust his administrative remedies prior to consideration by the ABCMR.  Accordingly, this portion of his request will not be discussed further in these Proceedings. 

3.  The applicant further requested award of the Bronze Star Medal.  Based upon his application, the evidence of record, and accompanying supporting documents he has submitted, it does not appear that he was recommended for or awarded the Bronze Star Medal.  Nevertheless:

   a. Section 1130 of the U.S. Code (Title 10 USC 1130) allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10 USC 1130, the applicant must submit a DA Form 638 (Recommendation for Award), a copy of which is enclosed. 

  b. The DA Form 638 should clearly identify the applicant's unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which he is requesting recognition must accompany the DA Form 638. In addition, his award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

   c. Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.   Therefore, the applicant must submit his request through a Member of Congress, who will send it to the U.S. Army Human Resources Command (AHRC-PDP-A), 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

   d. If the applicant chooses to pursue the award requested by submitting a request under the provisions of Title 10 USC 1130, and his request is subsequently denied by HRC, he may reapply to the ABCMR.  He may complete an application online or download a current application DD Form 149 (Application for Correction of Military Records) from the Army Review Boards Agency website at http://arba.army.pentagon.mil.  Accordingly, this portion of his request will not be discussed further in these Proceedings. 


4.  The applicant initially enlisted in the delayed entry program of the U.S. Army Reserve and on 3 September 2003, he enlisted in the Regular Army.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  

5.  His record shows he deployed to Iraq in support of Operation Iraqi Freedom (OIF) from 6 January 2005 through 6 January 2006.

6.  On 2 September 2006, he was honorably released from active duty and transferred to the Kansas Army National Guard (KSARNG).  

7.  On 24 November 2007, he was ordered to, and entered, active duty at Fort Bliss, TX in support of OIF.  

8.  Orders 233-0017, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX, dated 20 August 2008, show he was retired from the Army by reason of temporary disability, effective 6 September 2008, and placed on the TDRL, effective 7 September 2008.  These orders show his retired rank/grade as SPC/E-4.

9.  His DD Form 214, dated 6 September 2008, shows he was honorably retired from the Army by reason of temporary disability.  He completed 9 months and 
13 days of net active service during this period, and 3 years of prior active service, including 1 year and 1 day of foreign service.  This form also shows in:

* item 4a (Grade, Rate or Rank) "SPC"
* item 4b (Pay Grade) "E-4"
* item 12h (Effective Date of Pay Grade) "2005  04  01"

10.  Orders 148-726, issued by Land Component, Joint Force Headquarters Kansas, KSARNG, dated 28 May 2009, promoted him to the rank/grade of SGT/E-5, effective 6 September 2008.  These orders cite Army Regulation 
600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20c, as the authority for this promotion.

11.  Orders 152-703, issued by Land Component, Joint Force Headquarters Kansas, dated 1 June 2009, show he was honorably discharged him from the ARNG and transferred to the U.S. Army Control Group (Retired Reserve), effective 6 September 2008.  These orders show his retired rank/grade as 

SGT/E-5.  Additionally, his NGB Form 22 shows he was discharged in the rank/grade of SGT/E-5.

12.  Orders D187-40, issued by the USAPDA, Washington, DC, dated 6 July 2011, removed him from the TDRL and permanently retired him in the rank/grade of SPC/E-4, effective 6 July 2011.

13.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-20 governs the promotion of Soldiers pending referral to an MOS/medical retention board (MMRB), medical evaluation board (MEB), or physical evaluation board (PEB).  Subparagraph 1-20c provides that per the provisions of Title 10, U.S. Code, section 1372 (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. 

14.  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.  Paragraph 2-4h provides detailed instructions and source document(s) for completing each block of the DD Form
214.  Subparagraph 2-4h(4) states items 4a and 4b contain the active duty grade or rank and pay grade at the time of separation, taken from the Enlisted Record Brief (ERB).

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, 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.

2.  The evidence of record shows the applicant was retired by reason of temporary physical disability on 6 September 2008.  He was promoted to the rank/grade of SGT/E-5, effective 6 September 2008, the day before he was placed on the retired list.  It appears the rank and grade on his DD Form 214 are incorrect; therefore, it would be appropriate to correct his DD Form 214 to show he was separated in the rank/grade of SGT/E-5.

3.  Additionally, he is entitled to correction of his retirement orders as well as to show he was placed on the TDRL in the rank/grade of SGT/E-5 and re-computation of his retired pay at the correct retired rank/grade of SGT/E-5. 

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* amending Orders 233-0017, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, dated 20 August 2008, to show he was placed on the retired list in the rank/grade of SGT/E-5
* amending Orders D187-40, issued by the USAPDA, Washington, DC, dated 6 July 2011, to show he was permanently retired in the rank/grade of SGT/E-5
* deleting from items 4a, 4b, and 12h of his DD Form 214 the entries "SPC," "E-4," and "2005  04  01," respectively, and adding the entries "SGT,"    "E-5," and "2008  09  06," respectively
* paying him all back pay and allowances and/or retired pay due




      ___________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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20120008478



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