IN THE CASE OF:
BOARD DATE: 30 July 2013
DOCKET NUMBER: AR20120022660
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 or Release or Discharge from Active Duty) to show he was retired by reason of physical disability in the rank/pay grade of specialist (SPC)/E-4.
2. The applicant states he had a grade determination at his last duty station which indicated he was to be retired at the rank/grade of SPC/E-4 since that was the last rank/grade he held the longest.
3. The applicant provides:
* Orders 100-0002
* Physical Disability Information Report
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. Having previous active service, the applicant enlisted in the Regular Army for 3 years in the rank/grade of sergeant (SGT)/E-5 on 18 October 2007.
3. Evidence in the applicant's record shows he received an Article 15 while in the rank/grade of SGT/E-5 on 17 December 2008, and an Article 15 while in the rank/grade of SPC/E-4 on 5 February 2009 which apparently reduced him to private (PVT)/E-1.
4. On 10 March 2009, while in the rank of PVT/E-1, an informal Physical Evaluation Board (PEB) convened in Washington, D.C., and found his medical condition of post-traumatic stress disorder prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit. He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 50% disability rating. The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified. He concurred with the PEB's finding and recommendation and waived his right to a formal hearing.
5. On 31 March 2009, the Army Grade Determination Review Board thoroughly reviewed the applicants records and determined that the highest grade in which the applicant satisfactorily served for the purpose of computation of disability separation pay is the rank/grade of SPC/E-4.
6. The applicant provides and his record contains Orders 100-0002, issued by Installation Management Command - Europe, dated 10 April 2009, releasing him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his placement on the Temporary Disability Retired List (TDRL). His effective date of retirement is noted as 2 July 2009, with placement on the retirement list on 3 July 2009, in the retired rank and grade of SPC/E-4.
7. The DD Form 214 he was issued shows in:
* item 4a (Grade, Rate or Rank) "PV1"
* item 4b (Pay Grade) "E01"
* item 12h (Effective Date of Pay Grade) "2009 02 05"
8. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. This regulation states that the Soldier's active duty grade or rank and pay grade at the time of separation would be entered in item 4a and item 4b of the DD Form 214. Additionally, this regulation stipulates an additional DD Form 214 will not be issued upon release from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicable regulation states that a Soldier's active duty grade or rank and pay grade at the time of separation would be entered in item 4a and item 4b of the DD Form 214. Evidence shows the applicant was reduced to the rank/grade of PVT/E-1 on 5 February 2009 and the information is correctly annotated on his DD Form 214.
2. The applicant is further advised that his retirement orders correctly reflect his retirement rank/grade and are the source document for his retired pay.
3. In view of the foregoing, he is not entitled to the 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) AR20120022660
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ABCMR Record of Proceedings (cont) AR20120022660
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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