IN THE CASE OF

		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130015627 


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 record to show he was retired in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.

2.  The applicant states he was not allowed to get promoted to SGT/E-5.  He was falsely accused of being the ringleader of a group who stole one million dollars worth of audio/video equipment and assaulted four Latino Soldiers (who cleared his name).  He was wrongfully jailed and because of his mental health, he is now able to talk about the situation.

3.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the St. Petersburg, Florida Regional Office of the Department of Veterans Affairs (VA)
* a Record of Admission to St. Mary's Medical Center, West Palm Beach, FL
* an Outpatient Meds Summary rendered by the VA Medical Center, West Palm Beach, FL
* a historical list of his appointments rendered by the VA Medical Center, West Palm Beach, FL
* a Jewish War Veterans of the United States Life Membership Certificate




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 Regular Army on 17 September 1985.

3.  His record contains the following pertinent documents:

	a.  A DA Form 2-1 (Personnel Qualification Record - Part II) which shows he was promoted to the rank/grade of SPC/E-4 on 1 December 1986.

	b.  A DA Form 2A (Personnel Qualification Record - Part I) dated 14 November 1991 which shows in Section II (Qualification Data):

		(1)  Item 1, that he was promoted to the rank/grade of SPC/E-4 on 1 December 1986.

		(2)  Item 31, that he currently had 540 promotion points which became effective in July 1991.

		(3)  Item 32, that he previously had 667 promotion points which became effective in March 1990.

	c.  Department of the Army, U.S. Total Army Personnel Command, Orders D111-12, dated 5 June 1992, which show he was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permitted his retirement for permanent physical disability.  These orders also show:

		(1)  his effective date of retirement was 26 June 1992

		(2)  He was placed on the retired list on 27 June 1992

		(3)  his retired grade was SPC/E-4

		(4)  his percentage of disability was 30 percent.

	d.  A DA Form 3713-E (Data for Retired Pay), dated 5 June 1992, which shows his rank grade as SPC/E-4 for the following categories:

* Active Grade
* Retired Grade
* Highest Grade
* Retired Pay

	e.  Fitzsimons Army Medical Center, Aurora, CO, Orders 115-23, dated 18 June 1992, which show he was reassigned to the U.S. Army Transition Center, Fitzsimons Army Medical Center, Aurora, CO, with a reporting date of 26 June 1992.  The additional instructions stated that he would be placed on the Permanent Disabled Retired List on 27 June 1992 in the grade of SPC with a disability rating of 30 percent.

	f.  His DD Form 214 which shows he was honorably retired on 26 June 1992 due to permanent disability in the rank/grade of SPC/E-4.  This document also shows his effective date of pay grade as 1 December 1986.

4.  His record is void of any indication he was ever promoted to the rank/grade of SGT/E-5.

5.  His record is void of any disciplinary action showing that he was removed from the promotion standing list.

6.  The applicant provides:

	a.  a letter from the St. Petersburg, Florida Regional Office of the VA, dated 17 July 2013, which certified that he was receiving service-connected disability compensation on a monthly basis as a result of a 30 percent disability rating.

	b.  a Record of Admission to St. Mary's Medical Center, West Palm Beach, FL, dated 1 December 2012, which shows he was admitted for psychiatric treatment for a diagnosis of major depression with psychosis.

	c.  an Outpatient Meds Summary rendered by the VA Medical Center, West Palm Beach, FL, dated 11 December 2012, which shows that he was prescribed three different medications at the time.
	d.  a historical list of his appointments during the period 7 October 2010 through 4 December 2012, rendered by the VA Medical Center, West Palm Beach, FL, on 11 December 2012.

	e.  a certificate which shows he was awarded a life membership in the Jewish War Veterans of the United States on 25 January 2011.

7.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed the policies and procedures for advancement, promotion, and appointment of enlisted Soldiers on active duty.  Paragraph 7-6e provides that Soldiers (E-1 through E-8) are nonpromotable and will not be advanced or promoted to a higher grade when under a current suspension of favorable personnel actions or when an officer having general court-martial authority, or a higher authority, determines that a Soldier should have been under suspension of favorable personnel action.  Paragraph 7-28 lists numerous reasons for which a promotion authority can remove a Soldier from the promotion standing list, to include adverse action resulting from misconduct.

DISCUSSION AND CONCLUSIONS:

1.  Evidence clearly shows the applicant was promoted to the rank/grade of SPC/E-4 on 1 December 1986.

2.  Evidence also shows that he was in a promotable status on 14 November 1991.

3.  His record is void of evidence showing that he was subjected to disciplinary action.  However, by his own admission he was accused of being the ringleader of a group who stole one million dollars worth of audio/video equipment and assaulted four Latino Soldiers, and then subsequently jailed.  Therefore, it is not unreasonable to presume that a suspension of favorable personnel actions was placed upon his records or that he was administratively removed from the promotion standing list as a result of adverse action.

4.  The applicant's record is void of any evidence showing he was ever promoted to the rank/grade of SGT/E-5 at any time during his service.  In the absence of evidence to show he was not flagged and he was otherwise eligible for promotion at the time of his retirement, there is no basis for promoting him to SGT/E-5 on the Retired List.




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)                                         AR20130015627





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ABCMR Record of Proceedings (cont)                                         AR20130015627



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