IN THE CASE OF:
BOARD DATE: 11 June 2014
DOCKET NUMBER: AR20130016463
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 two separate applications, correction of his records to show he was promoted to pay grade E-2 after 6 months of active service.
2. The applicant states:
* He was never promoted from pay grade E-1 to pay grade E-2 when others were promoted
* He was in a promotable status as others who were with him were promoted
* He had no disciplinary actions against him
* He is only looking for recognition that he was serving in pay grade E-2 when he was separated
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 29 July 2005, the applicant enlisted in the Iowa Army National Guard (IAARNG) for 8 years, in pay grade E-1. He was ordered to initial active duty for training (IADT), effective 6 September 2005. He completed basic combat training and he was ordered to advanced individual training (AIT), effective 19 November 2005.
3. The applicant's records show that he was in AIT on 7 March 2006, when a Medical Evaluation Board (MEB) convened to evaluate the applicant's medical conditions. The MEB diagnosed the applicant with cervicalgia and mechanical back pain and determined both conditions to be medically unacceptable in accordance with Army Regulation 40-501. The MEB recommended that he be referred to a Physical Evaluation Board (PEB).
4. The PEB convened on 18 April 2006 to determine the applicant's fitness for retention in the Army. The PEB diagnosed the applicant with chronic neck pain with tenderness over the neck muscles on palpation. He was also diagnosed with chronic low back pain with normal radiographs of the lumbosacral spine. The PEB found the applicant to be physically unfit for continued service with a 20 percent combined service-connected disability rating. The PEB recommended that the applicant be separated with severance pay.
5. On 15 May 2006, the applicant was released from IADT due to physical disability and he was discharged from the IAARNG, in pay grade E-1.
6. The applicant's Army Military Human Resource Record does not contain any evidence showing he was not qualified for advancement to pay grade E-2 when he attained 6 months time in service (TIS).
7. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states that promotions to private (E-2), private first class (E-3), and specialist (E-4) will be made automatically by the total Army personnel data base for posting to the automated personnel file and the master military pay file. DA Form 4187 (Personnel Action) will be used for all U.S. Army Reserve (USAR) Soldiers and all ARNG Soldiers awaiting initial entry training (special advancements and split training option-phase II) and all advancements for Soldiers in a Title 10 status (including mobilization). DA Form 4187 will not be used for automatic advancements. Eligibility criteria for automatic promotion to pay grade E-2 is 6 months TIS. Soldiers must not be flagged or barred from reenlistment.
8. If a unit commander elects not to recommend a Soldier for promotion on the automatic promotion date, then a DA Form 4187 denying the promotion will be submitted not later than the 20th day of the month preceeding the month of automatic promotion.
9. The DA Form 4187 denying the promotion will be used by the Battalion Human Resources to initiate a FLAG transaction using code PA as the initial and reason code and input the transaction into the automated system. This will stop an automatic promotion. The FLAG must be closed using FLAG code PE not later than the second working day following the date the Soldier would have been automatically promoted.
DISCUSSION AND CONCLUSIONS:
1. According to the applicable regulation, the automatic promotion to pay grade E-2 requirement is 6 months TIS. There is no evidence in the available record showing he was not qualified for advancement to pay grade E-2 when he attained 6 months TIS.
2. In view of the foregoing, the applicant's records should be corrected as recommended below.
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 advanced to private (E-2) on 29 January 2006 and issuing him all back pay and allowances 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) AR20130016463
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130016463
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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