BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130019767 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 June 2005 to show in:

* item 4a (Grade, Rate, or Rank) – staff sergeant (SSG)
* item 4b (Pay Grade) – E-6

2.  The applicant states he should have been honorably discharged in the rank/pay grade of SSG/E-6 in 2005.  He was discharged in the rank/pay grade of corporal (CPL)/E-4, the rank he held during his last tour of duty from 2003 to 2005.  He was honorably discharged from the Army National Guard Active Guard Reserve Program in the rank/pay grade of sergeant first class (SFC)/E-7.  The highest rank he held during active duty from 1984 to 1991 was SSG/E-6.  He was rated by a medical evaluation board (MEB) in 2005 in the rank/pay grade of CPL/E-4.  He did not know he could appeal the decision until he was advised at a Combat Veterans Association meeting.

3.  The applicant provides copies of the following:

* DA Form 2-1 (Personnel Qualification Record – Part II)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 December 1991
* DD Form 214 for the period ending 19 March 2002
* Orders 168-0158, dated 17 June 2005
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 20 June 2005 with memorandum

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 in pay grade E-1 on 23 August 1984.  He served as a field artillery firefinder radar operator.  He reenlisted on 21 May 1988.  He was promoted to the rank/pay grade of SSG/E-6 on 1 February 1991.

3.  He was honorably discharged the rank/pay grade of SSG/E-6 on 3 December 1991 under the Fiscal Year 1991 Early Transition Program.  He completed 7 years, 3 months, and 11 days of net active service with no lost time.

4.  He had a break in service from December 1991 to August 1998.

5.  He enlisted in the Florida Army National Guard (FLARNG) in the rank/pay grade of sergeant (SGT)/E-5 on 24 August 1998.  He served as an infantryman.  He entered active duty on 13 September 1999 in the rank/pay grade of SSG/E-6.

6.  FLARNG Orders P116-004, dated 26 April 2002, promoted him to the rank/pay grade of SFC/E-7 effective 20 March 2002.

7.  He was honorably released from active duty on 1 January 2003.  He completed 2 years, 3 months, and 19 days of net active service with no lost time. 

8.  FLARNG Orders P363-117, dated 29 December 2002, ordered him to active duty in support of Operation Iraqi Freedom with a reporting date of 2 January 2003.  These orders show his rank/pay grade as SFC/E-7.

9.  The U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS) Soldier Management System (SMS) shows his rank/pay grade as specialist (SPC)/E-4 with a date of rank of 19 August 2004.  His records are void of the facts and circumstances and/or orders for his reduction to the rank/pay grade of SPC/E-4 or corporal (CPL)/E-4 in August 2004.

10.  HRC Orders A-04-509101, dated 4 April 2005, retained him on active duty to participate in the Reserve Component Medical Holdover/Medical Processing Program.  These orders show his rank as SFC.

11.  A review of his records located in the HRC IWS SMS and integrated Personnel Electronic Records Management System failed to reveal the facts and circumstances of his medical evaluation determination.  There is no indication a grade determination was made at that time.

12.  A DD Form 215 (Correction to DD Form 214) was issued on 12 April 2005 correcting items 12b (Separation Date This Period) and 12c (Net Active Service This Period) of his DD Form 214 for the period ending 1 January 2001 to show:

* item 12b – 1 January 2003
* item 12c – 3 years, 3 months, and 19 days

13.  Headquarters, U.S. Army Armor Center and Fort Knox, Orders 168-0158, dated 17 June 2005, discharged him from the Reserve of the Army effective 20 June 2005 with entitlement to disability severance pay in the rank/pay grade of SPC/E-4 based on 13 years, 2 months, and 19 days of service.  These orders list his rank as CPL.

14.  His DD Form 214 for the period ending 2 June 2005 shows he was honorably released from active duty and discharged from the Reserve of the Army on 20 June 2005 by reason of disability with severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3).  He was returned to the control of the ARNG.  He completed 2 years, 5 months, and 19 days of net active service with no lost time.  His DD Form 214 further shows in:

* item 4a (Grade, Rate, or Rank) – CPL
* item 4b (Pay Grade) – E-4
* item 12h (Effective Date of Pay Grade) – 19 August 2004



15.  FLARNG Orders P1178-024, dated 27 June 2005, honorably discharged him from the ARNG effective 20 June 2005.  These orders list his rank as SPC.

16.  His NGB Form 22 shows he was honorably discharged from the FLARNG on 20 June 2005 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), by reason of being medically unfit for retention.  He completed 14 years, 10 months, and 13 days of total service for retired pay.  His NGB Form 22 also shows in:

* item 5a (Rank) – SPC
* item 5b (Pay Grade) – E-4
* item 6 (Date of Rank) – 19 August 2004

17.  Title 10, U.S. Code, section 1212(a)(B), states disability severance pay will be twice the amount of monthly basic pay to which a member would be entitled if serving (i) on active duty on the date when his name was placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is separated, and (ii) in any temporary grade or rank higher than that described in clause (A), in which he served satisfactorily as determined by the Secretary of the military department or the Secretary of Homeland Security, as the case may be, having jurisdiction over the armed force from which he is separated.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in the Regular Army from August 1984 to December 1991 and was promoted to the rank/pay grade of SSG/E-6 during that period (1 February 2001).  He had a break in service from December 1991 to August 1998.  He enlisted in the FLARNG in the rank/pay grade of SGT/E-5 on 24 August 1998.

2.  He entered active duty on 13 September 1999 in the rank/pay grade of SSG/E-6.  He was promoted to the rank/pay grade of SFC/E-7 effective 20 March 2002.  He was released from active duty in that grade on 1 January 2003.  He again entered active duty on 2 January 2003 in support of Operation Iraqi Freedom.  However, the HRC IWS SMS shows his rank/pay grade as SPC/E-4 with a date of rank of 19 August 2004.  His records are void of the facts and circumstances and/or orders pertaining to his reduction.  He did not provide any evidence pertaining to his reduction to pay grade E-4.


3.  He was separated from active duty on 2 June 2005 for physical disability with severance pay.  He was discharged from the FLARNG in pay grade E-4 on 20 June 2005.  

4.  There is insufficient evidence to show he held the rank/grade of SSG/E-6 at the time of his separation.  Therefore, he is not entitled to correction of his       DD Form 214 to show he was separated as an E-6.

5.  However, in accordance with Title 10, USC, section 1212(a)(B), he should have received severance pay as an E-6.  The evidence of record show he satisfactorily held the grade of E-6 from 1 February 1991 through 3 December 1991, to qualify for disability severance pay as an E-6.  

6.  There is insufficient evidence to show he served satisfactorily as a E-7 to be paid disability severance pay as a E-7.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Headquarters, U.S. Army Armor Center and Fort Knox, Orders       168-0158, dated 17 June 2005, to show he was entitled to disability severance pay in the rank/pay grade of SSG/E-6 and having the Defense Finance and Accounting Service pay the applicant the difference in disability severance pay between pay grade E-4 and E-6.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of his 

DD Form 214, for the period ending 20 June 2005, to show his rank/pay grade as SSG/E-6.



      ___________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)                                         AR20130019767



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ABCMR Record of Proceedings (cont)                                         AR20130019767



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