IN THE CASE OF:
BOARD DATE: 8 May 2014
DOCKET NUMBER: AR20130012945
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, that his records be corrected to show he was retired in the rank and pay grade of Specialist/E-4.
2. The applicant states, in effect, that he should have been promoted to pay grade E-4 at the time of his retirement because he served in the rank of private first class (PFC) for a long time. He believes he was not promoted because of his disability and that his chain of command discriminated against him because of his mental illness.
3. The applicant provides two letters explaining his application, a chronology of events that led to his discharge, a copy of his Physical Evaluation Board (PEB) Proceedings, excerpts from Army Regulation 600-8-19 showing the criteria for automatic advancement to pay grade E-4, an Enlisted Record Brief (ERB), excerpts from Title 10, U.S. Code, DA Form 2627-1 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice), Memorandum for Record, and a DA Form 2823 (Sworn Statement).
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. After serving 2 years, 1 month, and 29 days of prior active service, the applicant again enlisted in the Regular Army on 24 May 2005 in the pay grade of E-2 for duty as a food service specialist. His basic active service date (BASD) was adjusted to 25 March 2003. He was assigned to Fort Hood, Texas and advanced to pay grade E-3 on 1 December 2005.
3. The applicants ERB, dated 7 July 2006, shows that he had no reenlistment eligibility/prohibition code listed.
4. On 27 July 2006, he was honorably retired in the pay grade of E-3 due to disability, temporary. He had completed 1 year, 2 months, and 4 days of net active service this period and he had 7 months and 27 days of time in grade.
5. A review of the available records failed to show any evidence of the applicant being recommended for or promoted to pay grade E-4.
6. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the criteria for advancement to the pay grade of E-4. It provides, in pertinent part, that eligibility for automatic advancement to pay grade E-4 is 24 months time in service and 6 months time in grade.
7. Army Regulation 600-8-19, paragraph 1-20 states Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldiers will be promoted to the designated grade effective the day before placement on the retired list. This guidance also pertains to active Army Soldiers who have reached the TIS requirements for the next level of automatic promotion (Private/E-2 to SPC/E-4.
DISCUSSION AND CONCLUSIONS:
1. The applicant met the TIS and TIG criteria for promotion to SPC at the time of his retirement, and his ERB does not show that a reenlistment eligibility/prohibition code was listed.
2. It appears he should have been promoted to SPC effective 27 July 2006 and he placed on the Retired List in the rank and grade of SPC/E-4.
BOARD VOTE:
____X____ ____X____ ____X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
* showing he was promoted to SPC/E-4 effective 27 July 2006
* amending his DD Form 214 for the period ending 27 July 2006 to show his rank and grade as SPC/E-4 and his effective date of pay grade as 27 July 2006
* amending his retirement orders to show he was placed on the Retired List on 28 July 2006 in the rank and grade of SPC/E-4
* paying him any pay and allowances/retired pay due as a result of this correction.
_______ _ __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) AR20130012945
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