IN THE CASE OF:
BOARD DATE: 11 February 2014
DOCKET NUMBER: AR20130010887
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 a review of his records and a determination as to the grade he should have held at the time of his separation for disability.
2. The applicant states he should have received a grade determination by the Army Grade Determination Review Board at the time his condition was reviewed by a medical board to determine if he should have been separated in a higher grade; however, no such review was conducted. He states he has 23 years of military service without a break, including 18 years in the Army National Guard, and he deployed four times. He also received numerous awards and held nine different military occupational specialties. Although he did not hold a higher grade or appear before a promotion board, he believes his record should be reviewed to ascertain what the proper grade would have been had his career not prematurely ended.
3. The applicant provides two self-authored letters to the Board and copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), evaluation reports, awards, and commendatory and service documents from his records.
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 Alabama Army National Guard on 5 October 1989. He completed his training and continued to serve through a series of continuous reenlistments. He was promoted to pay grade E-5 on 16 June 2001. He was honorably discharged from the Alabama Army National Guard on 14 February 2007 for immediate enlistment in the Regular Army.
3. On 15 February 2007, he enlisted in the Regular Army in pay grade E-5 for a period of 3 years and 2 months and assignment as a food service specialist. He was assigned to Fort Hood, Texas, for duty as a food operations sergeant.
4. On 31 October 2011, a physical evaluation board (PEB) convened at Fort Sam Houston, Texas, to determine if his diagnosis of idiopathic axonal peripheral neuropathy was unfitting. The PEB determined his condition was unfitting and assigned him a 0-percent disability rating. The PEB recommended his discharge with severance pay. The applicant concurred with the findings and recommendations of the PEB.
5. Accordingly, he was honorably discharged in pay grade E-5 on 29 March 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability with severance pay (non-combat) enhanced. He received $72,309.60 in severance pay benefits.
6. A review of the applicant's official records failed to show he held promotion list standing to pay grade E-6 at the time of his discharge.
7. Title 10, U.S. Code, section 1372, provides that Soldiers 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.
8. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) generally states that a grade determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability. It also provides that circumstances pertinent to whether such service is found satisfactory include promotion to and satisfactory service in a higher grade and, in the case of disability separation, the presence of an individual's name on a promotion standing list to the next higher grade.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions and supporting documents have been noted. The applicant has not provided and the records do not contain any evidence to show he was eligible for promotion to pay grade E6. There is no evidence showing he was recommended for or attained promotion list standing.
2. In the absence of evidence to show that he was in a promotable status at the time of separation for physical disability, there appears to be no basis to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ ___X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States
during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_____________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) AR20130010887
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ABCMR Record of Proceedings (cont) AR20130010887
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