IN THE CASE OF: 

		BOARD DATE:	    1 May 2014

		DOCKET NUMBER:  AR20130013698 


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 of Release or Discharge from Active Duty) to show in:

* item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) – "SPC" and "E4"
* item 23 (Type of Separation) – other than retirement

2.  The applicant states he was promoted to specialist (SPC) effective 1 November 2003.  He also states he was placed on temporary retirement, not permanently retired. 

3.  The applicant provides:

* City of Leominster Department of Veterans' Services letter
* DD Form 214
* DA Form 2-1 (Personnel Qualification Record)
* Enlisted Record Brief (ERB)   

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.  On 16 October 2002, the applicant enlisted in the Regular Army.

3.  His DA Form 2-1 shows he was advanced to the rank of private first class (PFC)/pay grade E-3 effective 1 June 2003 and to the rank of SPC effective 1 November 2003.

4.  His record in the Integrated Web Services database and his ERB show his rank as PFC with a date of rank of 1 June 2003.  His ERB does not show that he ever held the rank of SPC.

5.  Department of the Army, Headquarters, Fort McPherson Orders 308-0002, dated 3 November 2004, assigning him to the U.S. Army Transition Center for separation processing show his rank in the standard name line as "PFC."  Paragraph 2 of these orders show he was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the Temporary Disability Retired List (TDRL).  These orders show the effective date of his retirement as 17 December 2004 with placement on the retired list effective 18 December 2004.  It further shows his retired grade of rank as "PFC."  It also shows a percentage of disability of "30."

6.  His disability separation packet is not available for review.

7.  His DD Form 2648 (Preseparation Counseling Checklist), dated 25 August 2004, shows his grade as "E3." 

8.  His DD Form 214 shows that on 17 December 2004 he was retired from active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2).  It shows he completed 2 years, 2 months, and 2 days of creditable active service.  This form further shows in:

* item 4a and item 4b – "PFC" and "E3"
* item 18 (Remarks) – "RETIRED LIST GRADE PFC"
* item 23 (Type of Separation) – "RETIREMENT"
* item 28 (Narrative Reason for Separation) – "DISABILITY, TEMPORARY"

9.  During the processing of this case, the Defense Finance and Accounting Service (DFAS) indicated that the Soldier's Master Military Pay Account (MMPA) shows his pay grade was E-3 effective 1 June 2003 through his separation date of 17 December 2004.

10.  U.S. Army Physical Disability Agency Orders D075-03, dated 15 March 2006, removed him from the TDRL and discharged him from the service effective 15 March 2006 with a 10 percent disability rating.

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-9 states that requirements for placement on the TDRL are the same as for permanent retirement.

12.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers on retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated the DD Form 214 was a summary of a Soldier’s most recent period of continuous active duty.  It stated for:

* items 4a and 4b - enter active duty rank and pay grade at time of separation from ERB
* item 23 - enter the appropriate term listed below:

* Release from active duty
* Discharge
* Retirement
* Release from active duty and order to active duty in another status
* Release from ADT
* Release from custody and control of the Army
* Release from ADT and discharge from the Reserve of the Army and return to the ARNG

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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 evidence of record does not support the applicant's request.

2.  Department of the Army, Headquarters, Fort McPherson Orders 308-0002 retired the applicant due to disability effective 17 December 2004.  He was placed on the TDRL the following day.  Item 23 of his DD Form 214 shows "RETIREMENT" and item 28 shows "DISABILITY, TEMPORARY."

3.  Regulatory policy states that requirements for placement on the TDRL are the same as for permanent retirement.  As such, notwithstanding the fact that he was later removed from the TDRL and discharged effective 15 March 2006, there is no evidence of an error in the entry in item 23 of his DD Form 214 and no basis for changing the entry. 

4.  His DA Form 2-1 contains an entry showing he held the rank of SPC effective 1 November 2003.  However, all other available evidence in his records to include his MMPA show his rank as PFC/E-3, effective 1 June 2003, as it is reflected on his DD Form 214.

5.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, absent more compelling evidence to overcome the preponderance of the evidence showing his rank as PFC, it is presumed that the applicant's rank at the time of separation was, in fact, PFC.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20130013698



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ABCMR Record of Proceedings (cont)                                         AR20130013698



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