IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130010364 


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 his records be corrected to show he was promoted beyond the rank and pay grade of private (PVT)/E-1 to specialist (SPC)/E-4.

2.  The applicant states he should have been promoted to SPC, based on the automatic promotion system; however, he remained a PVT for over two years.

3.  The applicant provides no additional evidence.

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 completed prior service in the Regular Army and Army National Guard (ARNG), the applicant reenlisted at the rank/pay grade of SPC/E-4 on 
13 March 2007.  He held primary military occupational specialty (MOS) 25S (Satellite Communications System Operator) during this period of service.

3.  A review of his Army Military Human Resource Record (AMHRR) shows:

	a.  He was convicted by Special Court-Martial for being absent without leave (AWOL) from 11 November 2007 until 9 April 2009.  His sentence was adjudged on 16 October 2009 and his punishment included reduction to PVT/E-1;

	b.  His date of rank to PVT is shown as 30 October 2009 in the Service Data section of his Enlisted Record Brief (ERB), dated 28 February 2012; and 

	c.  His record is void of any indication he was ever promoted after he was reduced to PVT or reclassified to another MOS.

4.  A DA Form 7652 (Physical Disability Evaluation System (PDES) - Commander's Performance and Functional Statement), dated 14 April 2011 shows the applicant was pending involuntary separation under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c, for commission of a serious offense as the result of a special court-martial conviction for AWOL at the time he entered the PDES.  In addition, the applicant no longer held a security clearance and was unable to perform the duties of his MOS.

5  On 3 April 2012, a physical evaluation board (PEB) convened to evaluate the applicant's medical conditions. The board found his medical conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.

6.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 50-percent combined disability rating.  The PEB recommended that he be placed on the temporary disability retired list (TDRL).

7.  On 25 May 2012, Headquarters, U.S. Army Garrison, Fort Sill, OK, published Orders 146-1313 ordering his retirement on 27 June 2012 due to physical disability.  He was placed on the TDRL in the rank/grade of SPC/E-4 effective 
28 June 2012.

8.  On 1 June 2012, the same organization issued Orders 153-1304 which amended the order listed above to show his retired grade of rank as PVT.

9.  He was honorably retired on 27 June 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability, temporary.
10.  His DD Form 214 show he completed 6 years and 8 months of creditable active service during this period.  His DD Form 214 also shows in:

* Item 4a (Grade, Rate or Rank) – "PV1"
* Item 4b (Pay Grade) – "E01"
* Item 12i (Effective Date of Pay Grade) – "2009-10-30"

11.  On 21 May 2012, the Army Grade Determination Review Board determined that the highest grade in which he served satisfactorily for the purpose of computation of disability retirement/separation pay was his grade at the time of separation, PVT.

12.  The Department of the Army Pamphlet 611-21 (Smart Book) implements the policies and responsibilities for developing, maintaining, evaluating and revising the military occupational classification and structure (MOCS) for officers, warrant officers, and enlisted Soldiers.  This regulation states that a security eligibility level of SECRET is required in order to retain MOS 25S.

13.  Army Regulation 600-8-19, in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.  It states promotion to SPC requirement is 24 months' time in service (may be waived at 18 months TIS).  Promotions to PV2, PFC, and SPC will be made automatically by the U.S. Army Human Resources Command, Total Army Personnel database for posting to the automated personnel file and the master military pay file.

14.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states:

	a.  A Soldier will be flagged when the Commander, U.S. Army Central Personnel Security Clearance Facility denies or revokes the Soldier’s security clearance, in accordance with AR 380–67, which is required for his or her continued service or by his or her military operational specialty.  Remove
the flag when the Soldier’s security clearance is granted or reinstated; when the Soldier is reclassified into a military operational specialty that does not require a security clearance; or on the date the Soldier is reassigned to the transition point for separation.

	b.  A flag properly imposed prohibits the promotion or reevaluation for promotion.

15.  Title 10 of U.S. Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that any member of an armed force who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the highest of the following:  

* the grade in which he is serving on the date when his name is placed on the Retired List
* the highest grade in which he served satisfactorily
* the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was promoted to the rank/grade of SPC/E-4 was carefully considered and determined to lack merit.

2.  The applicant was found guilty by special court-martial for being AWOL for over 500 days and as a result of this action he was reduced to PV1 on 
30 October 2010.  The record shows that he was pending discharge in accordance with Army Regulation 635-200, chapter 14-12c, commission of a serious offense prior to his evaluation by a MEB/PEB.  Further, he no longer possessed a security clearance and was no longer performing the duties of his MOS.  Subsequently, a PEB found him unfit and recommended he be placed on the TDRL.  He was retired due to physical disability in the pay grade of PV1/E-1 on 27 June 2012.

3.  Regulatory guidance prohibits promotion of a flagged Soldier.  Although, there is no record of the applicant being flagged, it can be presumed that he was flagged for adverse action pending his administrative discharge.  Further, Soldiers that fail to maintain their security clearance will be flagged.  Such flags are not removed until the security clearance is reinstated, the Soldier reclassifies to another MOS or at the time he is transferred to the transition point.  There is no evidence the applicant was ever reclassified; therefore, he was not eligible for promotion on MOS 25S.

4.  The highest grade he satisfactorily held was pay grade PVT/E-1 and he was properly placed on the Retired List in that grade.  There appears to be no error or injustice in the grade in which the applicant was retired.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130010364





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ABCMR Record of Proceedings (cont)                                         AR20130010364



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