IN THE CASE OF:	

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120016653 


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 records to show, after being placed on the temporary disability retired list (TDRL), he:

* Entered active duty on 17 April 2009 vice 20 August 2009
* Entered active duty in the rank/grade of specialist (SPC)/E-4 vice private first class (PFC)/E-3

2.  The applicant states:

* He was removed from the TDRL and elected to enlist in the Regular Army within 90 days of his removal
* He completed a USAREC Form 1035 (Request to Change Enlistment Option) wherein he elected to enlist on 17 April 2009
* Due to confusion with the TDRL to active duty process, he was pending reclassification into military occupational specialty (MOS) 89D (Explosive Ordnance Disposal Specialist)
* By regulation, a former TDRL PFC would be promoted like they would have been had they not been forced to leave the service for a medical condition causing placement on the TDRL

3.  The applicant provides:

* Orders D089-01 (removal from TDRL)
* Election Relative to Enlistment
* USAREC Form 1035
* Extract of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of
4 years and 24 weeks on 23 August 2006.  He held MOS 88M (Motor Transport Operator) and he was promoted to PFC/E-3 on 23 August 2007. 

2.  A Physical Evaluation Board (PEB) convened on 30 August 2007 and found him physically unfit due to asthma.  The board recommended his placement on the TDRL and he concurred. 

3.  He was honorably retired on 21 October 2007 and placed on the TDRL in the rank/grade of PFC/E-3 on 22 October 2007.  He completed 1 year, 1 month, and 29 days of active service of which 2 months was completed in the rank of PFC.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) – "PFC" and "E-3"
* Item 12h (Effective Date of Pay Grade) – "2007  08  23"

4.  A TDRL PEB convened on 5 March 2009 and found him fit for duty.  He concurred on 20 March 2009.

5.  On 30 March 2009, the U.S. Army Physical Disability Agency (USAPDA) published Orders D089-01 ordering his removal from the TDRL effective 30 April 2009. 

6.  On 6 April 2009, he signed his Election Relative to Enlistment statement.  The statement:

	a.  informed him that by law and regulation, he was entitled to reenlist within 90 days following his removal from the TDRL in the component and grade in which he was serving prior to placement on the TDRL.  

	b.  advised him that since he was in the Regular Army, such reenlistment would be accomplished in his permanent grade and he would be reappointed to any higher temporary grade in which he was serving on active duty the day preceding the date he was placed on the TDRL.  He elected to reenlist in the Regular Army within 90 days following his removal from the TDRL.

7.  On 15 July 2009, he signed a USAREC Form 1035.  This form shows the entry "I, (Applicant), having enlisted in the Army's Future Soldier Training Program on 20090417 with a scheduled active duty date of 20090730 do hereby initiate this request to change my MOS."  

8.  On 18 June 2009, the USAPDA revoked Orders D089-01, dated 30 March 2009.  In its place, on 26 June 2009, USAPDA published Orders 177-19 ordering his removal from the TDRL effective 29 July 2009.

9.  He enlisted in the Regular Army in the rank/grade of PFC/E-3 for a period of 3 years and 2 months on 20 August 2009.  He served in MOS 88M at Fort Sill, OK, and he was promoted to SPC/E-4 on 8 April 2011. 

10.  He was honorably released from active duty on 2 September 2012 by reason of completion of his required service.  His DD Form 214 for this period shows in:

* items 4a and 4b – "SPC" and "E-4"
* item 12a (Date Entered Active Duty This Period) – "2009  08  20"
* item 12i (Effective Date of Pay Grade) – "2011  04  08"

11.  Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.

	a.  Paragraph 1-21 (Former TDRL personnel) states Soldiers returning to active/Reserve duty in grade sergeant or below will be considered for promotion. Eligibility will be based on the date of rank (DOR) and service they would have had if they had not been placed on the TDRL.  Waivers for time in grade (TIMIG) and time in service (TIS) apply, as granted by chapters 2, 3, and 5.  Eligible Soldiers in grades PV1 through PFC meeting the TIMIG and service requirements will be promoted or promoted as soon as possible.  It will be within 30 days after returning to active/Reserve duty.  Effective date and DOR will be the date of current entry on active/Reserve duty.

	b.  Paragraph 2-3c states the eligibility criteria for automatic promotion to PFC and SPC will be as follows:

* promotion to SPC requirements are 24 months TIS and 6 months TIMIG; may be waived at 18 months TIS and 3 months TIMIG

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 states that item 12 shows the record of service.  A breakdown of entries in item 12 is as follows:  item 12a shows the date of entry on active duty; item 12b shows the Soldier's transition/separation date; and item 12c shows all service, less time lost.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his reentry grade: 

	a.  He enlisted on 23 August 2006 and he retired by reason of temporary disability on 21 October 2007.  Prior to his retirement, he was promoted to PFC on 23 August 2007.  He remained on the TDRL from 21 October 2007 to 29 July 2009, a period of 1 year, 9 months, and 8 days.

	b.  When the TDRL PEB found him fit and he enlisted in the Regular Army, as required by law and regulation, his reenlistment was accomplished in his permanent grade of PFC.  

	c.  TDRL time counts towards TIS and TIG.  He previously completed 1 year, 1 month, and 29 days of active service, 2 months of which was in the rank of PFC.  He remained on the TDRL from 21 October 2007 to 29 July 2009, a period of 1 year, 9 months, and 8 days.  His total combined service (active duty and TDRL) was 2 years, 11 months, and 7 days.

	d.  Based on normal promotion at 24 months TIS and 6 months TIG, he should have enlisted in the rank/grade of SPC/E-4 on 20 August 2009 and is entitled to correction of his records to show this earlier promotion and back pay as a result of this correction. 

2.  With respect to the date of entry:

	a.  The applicant was initially removed from the TDRL on 30 April 2009.  He could not have possibly enlisted in the Regular Army on 17 April 2009 since he was still in a retired status.  He appears to have executed papers with the intent to reenlist in a different MOS. 

	b.  It appears the USAPDA amended his removal date from the TDRL to 29 July 2009 in what appears to be an effort to accommodate his desire to reenlist within 90 days of removal from the TDRL.  Accordingly, he continued to receive retired pay until 29 July 2009.  He enlisted on 20 August 2009.  This is the date shown on his DD Form 214 as the date of entry.  It is correct and there is no reason to change it.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  __X______  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* Issuing him a DA Form 4187 (Personnel Action) or appropriate document promoting him to specialist/E-4 with an effective date and date of rank of 20 August 2009
* Paying him the difference between E-3 and E-4 pay from 20 August 2009 (the date he should have been promoted to E-4) and 8 April 2011 (the date he was actually promoted to E-4)
* Deleting from item 12i of his DD Form 214 the entry "2011  04  08" and adding the entry "2009  08  20"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his reentry date on active duty to show 17 April 2009 vice 20 August 2009.



      _______ _   __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)                                         AR20120016653





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ABCMR Record of Proceedings (cont)                                         AR20120016653



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