IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140003944 


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) and separation orders to show his rank/grade as specialist (SPC)/E-4.

2.  The applicant states he held the grade of E-4 satisfactorily in the Marine Corps as well as in the Army.  Therefore, his record should be corrected to reflect he held the grade of E-4 satisfactorily.  

3.  The applicant provides:

* Orders Number 320-0605, dated 15 November 2012
* Orders Number 338-0626, dated 3 December 2012
* Enlisted Record Brief
* DD Form 214
* email transmission, dated 23 – 24 January 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Marine Corps on 29 June 1999.  He was honorably released from active duty for completion of required active service on 30 June 2003, in the rank/grade of corporal (CPL)/E-4.  His DD Form 214 shows he completed 4 years of net active service and had 2 days of lost time.  

2.  He enlisted in the Regular Army on 3 December 2008, in the rank/grade of SPC/E-4, and held military occupational specialty 92F (Petroleum Supply Specialist).

3.  On 4 September 2012, he underwent an informal Physical Evaluation Board (PEB).  The PEB found him physically unfit and recommended that he be separated with severance pay and a disability rating of 10 percent (%).  He concurred with the PEB's recommendation.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article     15 of the Uniform Code of Military Justice (UCMJ), on 19 October 2012, for disobeying a lawful order from a noncommissioned officer (NCO) by not showing up for a medical appointment in the correct uniform and making a false official statement to a commissioned officer by stating he did not engage multiple doctors/providers for the purpose of obtaining controlled substances, or words to that effect.  Part of his punishment consisted of a reduction in rank/grade from SPC/E-4 to PV2/E-2.

5.  Orders Number 302-0650, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY on 15 November 2012, show his rank grade as SPC/E-4 and indicated he was scheduled to be discharged due to a combat-related disability with severance pay.  His separation was authorized in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4–24b.

6.  Orders Number 388-0626, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 3 December 2012, show his rank grade as private 
PV2/E-2.  These orders were issued to amend Orders Number 302-0650, dated 15 November 2012 as follows:

	a.  "As reads:  RANK:  SPC // B.  YOU ARE AUTHORIZED DISABILITY SEVERANCE PAY IN THE GRADE E04 BASED ON 7 YEARS, 1 MONTH, 
7 DAYS OF SERVICE…"

	b.  "How changed:  RANK:  PV2 // B.  YOU ARE AUTHORIZED DISABILITY SEVERANCE PAY IN THE GRADE E02 BASED ON 8 YEARS, 1 MONTH, 
7 DAYS OF SERVICE…"

7.  His DD Form 214 shows he was honorably discharged in the rank/grade of PV2/E-2 on 7 January 2013 for a combat-related disability with severance pay in accordance with Army Regulation 635-40, paragraph 4–24b.  Additionally, he 

completed 4 years, 1 month, and 5 days of net active service with 4 years and 2 days of prior active service.

8.  Title 10, USC, section 1212 (Disability severance pay) states that upon separation from his armed force under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying the member’s years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c)), by the highest of the following amounts:

	a.  Twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when he is separated, and in the grade and rank in which he was serving on the date when he is separated.

	b.  Twice the amount of monthly basic pay to which he would be entitled if serving 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 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 was honorably released from from the U.S. Marine Corps in 2003, in the grade of E-4, after completing 4 years of active duty with 2 days of lost time.  He enlisted in the Army in 2008 and was honorably discharged as a result of a disability, with severance pay in 2013, in the grade of E-2, after completing 4 years, 1 month, and 5 days of net active service.  Therefore, he completed a total of 8 years, 1 month, and 5 days of total active service.

2.  His discharge orders noted that he is credited with 5 days instead of 7 days.  It appears to have been done because his Army DD Form 214 and orders failed to take into account the 2 days of lost time he accrued in the U.S. Marine Corps.  

3.  The evidence shows he is entitled to correction of his separation orders, based on the operation of law, to show his entitlement to separation with disability severance pay in the grade of E-4, based on his combat-related 

disability and his satisfactory service in the U.S. Marine Corps prior to his honorable release in 2003.

4.  The evidence of record shows the applicant was administered NJP prior to his separation, and part of that NJP consisted of a reduction in rank from SPC to 
PV2.  Therefore, his DD Form 214 is correct with respect to his rank and grade, there is no error or injustice in that respect, and he is not entitled to correction of his DD Form 214, for the period ending on 7 January 2013, to show his rank and grade upon separation as SPC/E-4.

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:

	a.  voiding Orders Number 388-0626, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 3 December 2012; and

	b.  amending Orders Number 302-0650, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 15 November 2012 to show:

		(1)  "As reads:  RANK:  SPC // B.  YOU ARE AUTHORIZED DISABILITY SEVERANCE PAY IN THE GRADE E04 BASED ON 7 YEARS, 1 MONTH, 
7 DAYS OF SERVICE"

		(2)  "How changed:  RANK:  SPC // B.  YOU ARE AUTHORIZED DISABILITY SEVERANCE PAY IN THE GRADE E04 BASED ON 8 YEARS, 1 MONTH, 5 DAYS OF SERVICE."

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 correcting his DD Form 214 to show he was separated in the rank/grade of SPC/E-4. 



      ____________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)                                         AR20140003944





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ABCMR Record of Proceedings (cont)                                         AR20140003944



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