BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120013014 


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 the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4
* reimbursement of the difference of active duty E-5 pay from 28 August 2007 to 21 April 2009
* an appropriate award for providing first aid to a wounded Soldier

2.  The applicant states he was issued promotion orders but they were revoked based on being on the overweight program.  The orders were not supposed to be revoked because he was undergoing medical processing that concluded with a medical evaluation board and ultimate disability retirement.

3.  The applicant provides his DD Form 214, Orders 070-0003 (retirement orders), and Orders 357-0001 (amendment of retirement orders).

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 initially enlisted in the Puerto Rico Army National Guard (PRARNG) on 2 December 1987 and he held military occupational specialty (MOS) 12B (Combat Engineer).

3.  He served through multiple reenlistments or extensions in a variety of stateside and overseas assignments, including periods of mobilization.  He was promoted to SPC/E-4 on 1 April 1990 and he was awarded MOS 95B (Military Police) on 20 August 1997.

4.  On 15 July 2004, he was awarded primary MOS 31B (previously 95B) and secondary MOS 21B (previously 12B).

5.  It appears the applicant's name was incorporated on the E-5 Promotion List in or around January 2006.  He was listed on the promotion list as number 6 in January 2006 and number 3 in June 2007.

6.  On 1 May 2006, he was assigned to the 240th Military Police Company, PRARNG, and on 6 August 2006, he was ordered to active duty in support of Operation Iraqi Freedom.  He subsequently served in Kuwait/Iraq from 29 October 2006 to 18 October 2007.

7.  His record contains a DA Form 5500 (Body Fat Content Worksheet), dated 14 January 2007, that confirms he was 70 pounds overweight and he exceeded the maximum allowable body fat by 6%).

8.  On 31 August 2007, his immediate commander initiated a flag (suspension of favorable personnel actions) against him, effective 29 August 2007, by reason of overweight and not being in compliance with Army Regulation 600-9 (The Army Weight Control Program).

9.  On 4 January 2008, the PRARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

10.  Orders 141-507, issued by Joint Force Headquarters, Puerto Rico National Guard Element, dated 20 May 2008, announced his promotion to SGT/E-5 with an effective date and date of rank of 28 August 2007.

11.  Orders 142-533, issued by the same headquarters, dated 21 May 2008, revoked Orders 141-507 that promoted him to SGT/E-5.

12.  On 9 February 2009, an informal physical evaluation board (PEB) convened at Fort Sam Houston, TX.  The PEB found the applicant's medical conditions of post-traumatic stress disorder (PTSD), degenerative arthritis of the cervical spine, degenerative arthritis of the lumbar spine, and left shoulder pain prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  He was rated under the appropriate disability code and granted a 70% disability rating.  The PEB recommended the applicant be placed on the temporary disability retired list (TDRL) with reexamination in November 2009.  He concurred with the findings and recommendations of the board and he waived a formal hearing of his case.

13.  Orders 070-0003, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR, dated 11 March 2009, released the applicant from assignment and duty because of physical disability effective 21 April 2009, and placed him on the Temporary Disability Retired List (TDRL) effective 22 April 2009 in his retired rank/grade of SPC/E-4.

14.  On 21 April 2009, he was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(2), due to disability, temporary.  The DD Form 214 he was issued shows he completed 2 years, 8 months, and 16 days of net active service during this period.  This form also shows in:

* item 4a (Grade, Rate or Rank) – "SPC"
* item 4b (Pay Grade) – "E-4"
* item 12i (Effective Date of Pay Grade) – "1990  04  01"

15.  Orders 357-0001, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR, dated 23 December 2009, amended Orders 070-0003 (retirement orders) to show he retired in the rank/grade of SGT/E-5 vice SPC/E-4.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders).

17.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-10 states a Soldier who is in a non-promotable status if flagged.  The failure to initiate DA Form 268 (Report to Suspend Personnel Actions (FLAG)) does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a FLAG under the provisions of Army Regulation 600–8–2 (FLAG), paragraph 1–12 and 1–13.  

18.  Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the Armed Forces), 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 temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

	a.  The grade or rank in which he/she is serving on the date when his/her name is placed on the TDRL or, if his/her name was not carried on that list, on the date when he/she is retired.

	b.  The highest temporary grade or rank in which he/she served satisfactorily, as determined by the Secretary of the armed force from which he/she is retired.

	c.  The permanent regular or Reserve grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of a physical examination. 

	d.  The temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she 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.

19.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

20.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards 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 knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in an active duty status from 6 August 2006 to 21 April 2009.  During this period of active duty, he was in a non-promotable status to SGT/E-5.  Orders were published promoting him to SGT/E-5, effective 28 August 2007; however, the orders were then revoked as they were clearly issued in error since he was flagged for being overweight.  Once the orders were revoked, he reverted back to the rank/grade of SPC/E-4.

2.  He underwent medical separation processing that led to his retirement on 21 August 2009 and placement on the TDRL on the following day.  There is no evidence that shows he was in a promotable status on the date of discharge.  Since he held the rank/grade of SPC/E-4 at the time of placement on the TDRL, his DD Form 214 correctly reflected his rank/grade at the time of his separation.

3.  Months after his placement on the TDRL, the PRARNG amended his retirement orders to show his rank/grade as SGT/E-5.  This was not done because the applicant had been promoted to SGT/E-5; it was done because the law allows a member to retire in the temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired.

4.  Since he was not promoted to SGT/E-5 between 28 August 2007 and 21 April 2009, he would not have been entitled to pay at the E-5 rate and since he did not hold the rank/grade of SGT/E-5 on the date of separation from active duty (he was still in a non-promotable status), his DD Form 214 correctly shows his SPC/E-4 rank/grade.  Therefore, there is neither an error nor an injustice regarding this issue.

5.  While the ABCMR does not have the authority for awarding the applicant an award for providing first aid to a fellow Soldier during a mortar attack, this in no way affects the applicant’s right to pursue his claim for an appropriate award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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)                                         AR20120013014



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ABCMR Record of Proceedings (cont)                                         AR20120013014



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