IN THE CASE OF:	  

		BOARD DATE:	  28 May 2013

		DOCKET NUMBER:  AR20120019075 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired by reason of disability in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.

2.  The applicant states:

* when she was honorably discharged for disability at Fort Wainwright, AK, she went to the transition center to out-process
* she left Fort Wainwright on 30 days of permissive temporary duty to bring her children back
* she did not sign her DD Form 214
* she was promotable to SGT as her Enlisted Record Brief (ERB) shows
* the regulation is clear in that promotable Soldiers separated for disability are paid severance pay at the higher grade

3.  The applicant provides:

* DD Form 214
* ERB
* commander's performance statement
* DA Form 3349 (Physical Profile)
* disciplinary action statement
* 
DA Form 705 (Army Physical Fitness Test Scorecard)
* November 2004 leave and earnings statement
* permanent change of station orders
* separation 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 enlisted in the Regular Army on 18 March 1997 and she held military occupational specialties 42A (Human Resources Specialist).  She served through multiple reenlistments in a variety of stateside and overseas assignments and she was promoted to SPC/E-4 on 28 March 1997.

3.  She was assigned to Detachment A, 203rd Personnel Services Battalion, Fort Wainwright, AK.  Her ERB, dated 7 December 2004, shows she was a promotable SPC with 838 points as of August 2002.

4.  On 3 March 2005, an informal physical evaluation board (PEB) convened and found her medical condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 10-percent disability rating.  The PEB recommended her separation with entitlement to severance pay.  She concurred.

5.  On 30 March 2005, Headquarters, 203rd Personnel Services Battalion, Fort Wainwright, AK, published Orders 089-203 ordering her reassignment to the Transition Center for separation processing effective 6 June 2005 and separation by reason of disability effective 6 June 2005 with entitlement to severance pay in pay grade E-4 based on 8 years, 2 months, and 19 days of active service.

6.  She was honorably discharged on 6 June 2005 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability.  Her DD Form 214 shows in:

* item 4a (Grade, Rate, or Rank) – "SPC"
* item 4b (Pay Grade) – "E-4"
* item 12f (Effective Date of Pay Grade) – "1997  03  18"

7.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance for 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).

8.  Military Personnel Message Number 05-084, dated 4 April 2005, subject:  Enlisted Eligibility Regarding Enlisted Soldiers Undergoing Evaluation by the MOS/Medical Retention Board (MMRB), Medical Evaluation Board (MEB) or PEB, references Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and Headquarters, Department of the Army, memorandum, dated 28 March 2005, and states Soldiers who are 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.  Additionally, under the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective on the Soldier's separation date.  The policy pertains to Soldiers of all ranks.

9.  Headquarters, Department of the Army, Office of the Deputy Chief of Staff for Personnel, has clarified that the above policy is effective with the revised publication of Army Regulation 600-8-19 in January 2006.

10.  Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(d) of the version published on 10 January 2006 states that under the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective on the Soldier's separation date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 18 March 1997 to 6 June 2005.  She was a promotable SPC/E-4 at the time of her disability discharge.  By law, at the time she was separated Soldiers on a promotion list at the time of separation for disability with entitlement to disability severance pay would be paid such compensation at the promotion list grade.  However, the regulatory guidance to promote the Soldier to the designated grade effective on the Soldier's separation date did not become effective until after the applicant separated.

2.  Therefore, she is entitled to correction of her separation orders to show she was discharged for disability effective 6 June 2005 and is entitled to severance pay at the pay grade of SGT/E-5 effective that date.  However, there is no error on her DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

* amending Orders 089-203, issued by Headquarters, 203rd Personnel Services Battalion, Fort Wainwright, AK, dated 30 March 2005, to show entitlement to severance pay in pay grade E-5 vice E-4 based on 8 years, 2 months, and 19 days of active service
* paying her the difference of any severance pay due as a result of this correction

2.  The Board further determined that the evidence presented was 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 her DD Form 214 to show her rank and grade as sergeant/E-5.



      ___________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)                                         AR20120019075



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ABCMR Record of Proceedings (cont)                                         AR20120019075



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