IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120008634 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was promoted and discharged as a specialist (SPC)/E-4.

2.  The applicant states a clerical error on behalf of the U.S. Army resulted in the wrong rank/grade being put on his DD Form 214.  He claims his promotion was approved on 18 August 1998 and he was subsequently promoted to the rank/grade SPC/E-4 on 1 September 1998, twenty days prior to his honorable discharge.

3.  The applicant provides a copy of his DD Form 214 and DA Form 4187 (Personnel Action), dated 19 August 1998.

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 16 August 1996.  He completed training and he was awarded military occupational specialty (MOS) 31U (Signal Support Systems Specialist).

3.  His record contains a DA Form 2-1 (Personnel Qualification Record) that shows in:

* item 35 (Record of Assignments) he was assigned to Headquarters and Headquarters Battery, 31st Air Defense Artillery Brigade, Fort Bliss, TX on 20 March 1997
* item 18 (Appointments and Reductions) he was promoted to the rank/grade of private first class (PFC)/E-3 on 1 July 1997

4.  His record also contains a memorandum issued by the S1 Noncommissioned Officer-in-Charge (NCOIC) of Headquarters and Headquarters Battery, 31st Air Defense Artillery Brigade, dated 19 June 1998, that states the applicant was flagged for adverse action.

5.  On 17 July 1998, a Medical Evaluation Board (MEB) convened at William Beaumont Army Medical Center, El Paso, TX and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with bilateral chronic plantar fasciitis with mild flexible pes planus and grass allergic rhinitis.  The MEB determined the applicant was unable to satisfactorily perform the duties required of his rank and specialty; therefore, it recommended the applicant be found unfit for retention on active duty.

6.  The MEB indicated the applicant did not desire to continue on active duty and recommended his referral to a Physical Evaluation Board (PEB).  On 24 July 1998, the findings and recommendation of the MEB were approved.  On 28 July 1998, the applicant signed agreeing with the findings and recommendation of the MEB.

7.  On 3 August 1998, a PEB convened at Fort Lewis, WA.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty; however, it found the impairment existed prior to active duty and subsequently determined his disposition to be separated from service without disability benefits.


8.  On 6 August 1998, having been advised of the findings and recommendations of the PEB, and having received a full explanation of the results of the findings, recommendations, and legal rights pertaining thereto, the applicant indicated he did not concur with the PEB and he submitted a written appeal.

9.  On 10 August 1998, the applicant was notified that his appeal had been carefully considered and his case was reviewed.  Following its review of his case, the PEB adhered to the original findings and recommendations and forwarded his case to the U.S. Army Physical Disability Agency (USAPDA) for processing.

10.  On 21 August 1998, the USAPDA concluded that his case was properly adjudicated by the PEB and its findings and recommendations were affirmed.

11.  The applicant's record contains a DA Form 2A (Personnel Qualification Record, Section II, Qualification Data), dated 2 September 1998, that shows the applicant's grade/code as "PFC  3," and his date of rank as "1 July 1997."  In addition, this section shows the applicant was ineligible for reenlistment.

12.  On 21 September 1998, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), reason of "disability, existed prior to service, PEB," in the rank/grade PFC/E-3.

13.  The applicant provides a DA Form 4187, dated 19 August 1998, advancing him to the rank/grade SPC/E-4, effective 1 September 1998.  However, this
DA Form 4187 is not contained in his available records.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to the promotion of Army enlisted personnel.  It stated that Soldiers (private through master sergeant) were nonpromotable to a higher grade when a PEB determined that a Soldier was no longer qualified for continued active service, or was flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)).

DISCUSSION AND CONCLUSIONS:

1.  The available evidence is insufficient to correct the applicant's DD Form 214 to show he was promoted to or discharged from active duty in the rank/grade of SPC/E-4.


2.  The available evidence shows the applicant was flagged for adverse action, ineligible to reenlist, and found to be no longer qualified for continued active service by an MEB/PEB.  Based on this evidence and in accordance with applicable regulations, the applicant was considered to be in a nonpromotable status on the effective date of the DA Form 4187 provided by the applicant.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120008634



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ABCMR Record of Proceedings (cont)                                         AR20120008634



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