IN THE CASE OF:	  

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140005240 


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 records to show he was discharged by reason of physical disability in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. 

2.  The applicant states:

* his severance pay in 1989 was incorrectly processed and computed in the rank/grade of SGT/E-5
* he was a promotable SGT, on the E-6 list for 8 years by the time he was discharged
* he also served in an E-7 slot in military occupational specialty (MOS) 31Z (communications chief) 
* he was not afforded a review of his grade by the Army Grade Determination Review Board (AGDRB)

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and pages 1 and 2 of his 4-page DA Form 2-1 (Personnel Qualification Record) 

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's complete military records are not available to the Board for review.  However, he provides sufficient documents (DD Form 214 and DA Form 2-1) for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he initially enlisted in the Regular Army (RA) on 1 August 1977 and he appears to have been discharged on 14 February 1980 for immediate reenlistment.

4.  His DD Form 214 also shows he reenlisted in the RA on 15 February 1980.  He held MOS 76Y (Unit Supply Specialist) and 88M (Motor Transport Operator).

5.  His DA Form 2-1 shows he served in Germany from 22 November 1977 to 25 July 1980 and in Hawaii from 7 February 1987 to on or about 6 February 1988.

6.  His DA Form 2-1 also shows between November 1984 and February 1987, his duty MOS was 31Z, at Fort Detrick, MD.

7.  Nothing in his available records shows he appeared before a promotion board to SSG, or that he was recommended for promotion to SSG, or that his name was added to or incorporated on a valid promotion standing list.

8.  He was honorably discharged on 2 June 1989 by reason of disability with entitlement to severance pay.  His discharge orders are not available for review and thus it is unknown what grade was listed on the orders for the purpose of severance pay.  However, his DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) - SGT
* item 4b (Pay Grade) - E-5
* item 12i (Effective Date of Pay Grade) - 1 December 1982

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(d) of the current regulation states that under the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective on the Soldier's separation date.

10.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance for preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders).

11.  Military Personnel Message Number 05-084, dated 4 April 2005, subject:  Enlisted Eligibility Regarding Enlisted Soldiers Undergoing Evaluation by the MOS/Medical Retention Board (MMRB), Medical Evaluation Board or Physical Evaluation Board, references Army Regulation 600-8-19, and Headquarters, Department of the Army, memorandum, dated 28 March 2005, and states Soldiers who are on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the Retired List.  Additionally, under the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective on the Soldier's separation date.  The policy pertains to Soldiers of all ranks.

12.  Headquarters, Department of the Army, Office of the Deputy Chief of Staff for Personnel, has clarified that the above policy is effective with the revised publication of Army Regulation 600-8-19 in January 2006.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are not available for review with this case.  Based on the available records, there is insufficient evidence to grant the applicant the requested relief.  There are three reasons for that: 

	a.  First, there is no evidence in the available records and he provides none to show he was a promotable SGT.

	b.  Second, his discharge orders are not available for review with this case.  These orders would have shown what grade was listed for the purpose of severance pay. 

	c.  Finally, the rule that Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade was effective with the revised publication of Army Regulation 600-8-19 in January 2006.  The applicant was discharged well before that. 

2.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief 

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)                                         AR20140005240





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ABCMR Record of Proceedings (cont)                                         AR20140005240



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