IN THE CASE OF:  	  

		BOARD DATE:  22 October 2015	  

		DOCKET NUMBER:  AR20140013463 


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 her military record by:

	a.  amending her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 September 2014 to show in:

		(1)  item 4a (Grade, Rate or Rank), the rank of sergeant first class (SFC) rather than staff sergeant (SSG).

		(2)  item 4b (Pay Grade), the pay grade of E-7 rather than E-6. 

		(3)  item 25 (Separation Authority), retired under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12 rather than Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.

		(4)  item 27 (Reentry Code), the Reentry Eligibility (RE) code as 4R rather than 4.

		(5)  item 28 (Narrative Reason for Separation), retired due to "Sufficient Service for Retirement" rather than "Disability, Permanent (Enhanced)."

	b.  granting her Combat-Related Special Compensation (CRSC) under the provisions of the CRSC II program.

	c.  changing her disability rating to include credit for surgery that she underwent on 4 November 2013 for a loose femur and tibia and her third full knee replacement.

2.  The applicant states that in spite of requesting to retire due to completing a sufficient period of service for retirement, she was medically retired from the military with over 20 years of active federal service and was ineligible to reenlist due to having an RE Code of 4R.  She served in the Regular Army (RA) for several years prior to being released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR).  While serving in the USAR, she was promoted to the rank/pay grade of SFC/E-7 and held that rank/pay grade when she completed reenlistment paperwork to return to active duty in the RA.  The DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States) shows her rank/pay grade as SFC/E-7, but her contract shows her rank/pay grade as SSG/E-6.  At the time, she did not realize that a Soldier can only be reduced in rank by a field grade officer.  It takes a general court-martial to demote a senior noncommissioned officer (NCO) unless they have a few punishments under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  At the time of her reenlistment, she had never received a negative counseling statement, any Article 15s for reduction or any waivers at the Military Entrance Processing Station (MEPS) in Raleigh, NC when she enlisted on or about 12 August 2008.  As an SFC, she should not have been demoted by standard nonjudicial punishment.  The only waiver she received at the time of her enlistment was for her age; however, she was unjustly demoted without proper paperwork being administered.

3.  She further states that after reviewing and signing her DD Form 214 for the period ending 8 September 2014 on 3 July 2014, she received a DD Form 215 (Correction to DD Form 214), dated 28 August 2014, that amended her DD Form 214, in part, by changing her RE Code from 4R to 4 indicating that she has a permanent disability.  She contends that this, combined with the narrative reason for separation of "Disability, Permanent," can destroy her life and considers it to be a travesty against a Soldier who served honorably from her time in the Women's Army Corps to 8 September 2014.

4.  The applicant provides:

* DD Form 214WS (DD Form 214 Worksheet)
* DD Form 214
* DD Form 214C (DD Form 214 Continuation Sheet)
* DD Form 215
* E-mail correspondence
* DD Form 1966 Series (Record of Military Processing – Armed Forces of the United States)
* 2 DD Form 4 Series (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Physical Disability Information Report
* DD Form 256A (Honorable Discharge Certificate)
* Documents from medical physical examinations conducted in 2008 and 2014
* Documents extracted from her medical record
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Documents extracted from her voluntary request for retirement due to length of service
* A self-authored letter addressed to a United States Senator
* An extract from her DA Form 2-1 (Personnel Qualification Record – Part II)
* An extract from her Women's Army Corps, Basic Training Course graduation pamphlet

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA on 8 January 1976.  On 9 November 1984, she was REFRAD in the rank/pay grade of sergeant (SGT)/E-5 and transferred to the USAR Control Group (Reinforcement).

2.  She continued to serve in the USAR through a series of reenlistments and assignments.  She was promoted in the USAR from SGT/E-5 to SSG/E-6 effective 1 May 1987 with a date of rank (DOR) of 21 April 1987.

3.  In 1987, the applicant requested to be reinstated in the RA in the rank/pay grade of SSG/E-6.  However, after being told that in order for her to reenlist in the RA she would have to reenlist in the rank/pay grade of specialist (SPC)/E-4, she declined to do so.  She appealed this matter to the Army Board for Correction of Military Records (ABCMR) twice in 1987 and in 1991.  Each application was denied with an explanation that reentry rank/pay grade determinations were based upon the needs of the Army at the time of enlistment.  She was informed to visit an Army recruiter to enlist/reenlist in the RA.

4.  She was promoted in the USAR from SSG/E-6 to SFC/E-7 with an effective date and DOR of 1 April 1992.

5.  Her record contains a DA Form 1059 (Service School Academic Evaluation Report) which shows that she failed to achieve course standards for the Reserve Component Advanced NCO Course (ANCOC) by failing an examination and the retest.  The NCO Academy cadre determined that she had not demonstrated the academic potential for selection to higher level schooling/training.  Her record is void of evidence showing that she subsequently attended and/or passed ANCOC.

6.  On 11 October 1998, the applicant was ordered to active duty in support of Operation Joint Forge and served in Bosnia from 20 October 1998 to 30 May 1999 and in Germany from 30 May to 15 June 1999.  On 7 July 1999, she was REFRAD and returned to the USAR.

7.  On 29 August 2001, the applicant was issued a Twenty Year Letter wherein she was notified that she had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60.  She was further advised that she would not be entitled to retired pay under Title 10, U.S. Code, Section 12731 if she was or became later entitled to retired pay from an armed force under any other provision of law.  She was also advised that if she was in an active status, based upon her completion of 20 years of qualifying service, she must earn a minimum of 50 points each retirement year to retain active status.

8.  On 7 March 2007, the applicant volunteered for a Contingency Operations Temporary Tour of Active Duty (COTTAD) (now known as Contingency Operation for Active Duty Operational Support (CO-ADOS)) from 27 March 2008 to 22 September 2008 with duty in Kuwait.  U.S. Army Human Resources Command (HRC) Orders A-03-708619, dated 29 March 2007, show she was ordered to active duty in the rank/pay grade of SFC/E-7 for the purpose CO-ADOS in support of Operation Iraqi Freedom (OIF) from 27 March to 22 September 2008 with duty in Kuwait.

9.  On 2 May 2007, a representative of 1st Theater Sustainment Command (TSC), Fort Bragg, NC, rendered a memorandum addressed to Commander, Central Clearance Facility, wherein he requested expedited adjudication of the applicant's security clearance which had been denied on 25 January 2001 and rebutted on or about 20 September 2004.  Expedited adjudication was required because the applicant was deploying overseas with her unit and required access to classified information.  The applicant would be working as G3 Plans NCO and that position required a minimum of a secret clearance.

10.  On 22 May 2007, the Security/Operations Officer, 2125th Garrison Support Unit (GSU) (Forward), Fort Bragg, NC, rendered a memorandum through Commander, 1st TSC to the Mobilization S1, 2125th GSU, wherein he requested the issuance of REFRAD orders for the applicant based upon her inability to deploy overseas due to not being able to meet the security requirement.  It was noted that the status of her clearance was "Upheld Denial" from the Department of Hearing and Adjudication Division, the highest authority for security clearance appeals.  The request was approved and the applicant was REFRAD accordingly on 7 July 2007. 

11.  On 11 January 2008, the applicant underwent a periodic medical examination which resulted in determining that she was medically fit for continued service.

12.  An e-mail message, dated 12 February 2008, shows a request for grade determination for the purpose of the applicant's enlistment in the RA was approved in the rank/pay grade of SSG/E-6.  The bases for this determination was the fact that there were no SFC/E-7 vacancies in the applicant's military occupational specialty (MOS) and the policy which prohibited any first assignment of any SGT/E-5 or above that required retraining.  The term of enlistment would not exceed 5 years.

13.  On 9 July 2008, Director, Development Directorate, HRC, rendered a letter to a U.S. Senator in response to her inquiry on behalf of the applicant regarding, in part, denial of promotion to the rank/paygrade of master sergeant (MSG)/E-8 and her inability to reenter active duty due to a lack of a security clearance.  The Director advised the Senator that effective 7 January 2003, the applicant's primary MOS (PMOS) of 74C (Telecommunication Center Operator) was withdrawn because she did not have a valid security clearance which was required to perform the duties of that particular PMOS.  She was reclassified to her secondary MOS (SMOS) of 71L (Administrative Specialist).  The applicant appealed the revocation of her clearance to the U.S. Army Personnel Security Appeals Board and it was denied.  The Director also advised the Senator that the applicant was recommended for promotion to MSG/E-8 in 2003 and 2005 by the Individual Ready Reserve (IRR) and Individual Mobilization Augmentation (IMA) Extended Active Duty Promotion Boards.  However, in e-mail communications of 13 September 2003 and 27 September 2005, the applicant was informed her clearance had been revoked.  Additionally, Soldiers must meet educational requirements for promotion and the applicant had failed to complete ANCOC.

14.  HRC Orders D-08-823009, dated 26 August 2008, show the applicant was honorably discharged from the USAR effective 11 August 2008.  The applicant was issued a DD Form 256A in commemoration of her honorable discharge.

15.  The applicant's record contains a DD Form 4 and a DA Form 3286 (Statements for Enlistment), each dated 12 August 2008, which show she voluntarily enlisted in the RA in the rank/pay grade of SSG/E-6 for a period of 3 years with the understanding that she would receive training in MOS 12C (Bridge Crewmember).  Upon completion of MOS training, she was assigned to 502 Engineer (Float Bridge), Fort Knox, KY with a reporting date of 1 November 2008.

16.  On 31 August 2009, the applicant was deployed in a temporary change of station (TCS) status in support of Operation Enduring Freedom (OEF) with duty in Kandahar, Afghanistan.  

17.  A Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 18 February 2010, shows the applicant was examined and treated at Landstuhl Regional Medical Center (LRMC), Landstuhl, Germany regarding some joint discomforts and urinary incontinence. 

18.  An SF 600, dated 22 February 2010, shows the applicant had a follow-up appointment at LRMC regarding some joint discomforts and urinary incontinence.

19.  LRMC Orders A-03-006226, dated 1 March 2010, shows the applicant was medically evacuated to the United States for continued medical care. 

20.  A DA Form 1695 (Oath of Extension of Enlistment), dated 4 May 2011, shows the applicant voluntarily extended her 3-year enlistment for 3 months due to the fact that she was pending MOS Administrative Retention Review (MAR2) adjudication.  As a result, her new expiration term of service date was established as 14 November 2011.  Her rank/pay grade on this document is shown as SSG/E-6.  The purpose of the MAR2 was to determine whether the applicant was sufficiently medically fit to satisfactorily perform her PMOS or if she should be reclassified to a less physically demanding MOS.  Section IV (Personal/Family Data) of her Enlisted Record Brief (ERB) shows that on 17 May 2011 the MAR2 recommended reclassification to another MOS.

21.  A DD Form 4 series and DA Form 3286, dated 25 May 2011, shows the applicant reenlisted in the RA in the rank/pay grade of SSG/E-6 for an indefinite period of time in accordance with the needs of the Army.

22.  Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC, Orders 270-465, dated 27 September 2011, show the applicant's PMOS of 12C was withdrawn and she was awarded PMOS 42A (Human Resources Specialist) to be effective upon completion of the 42A course.  She completed the 42A course on 28 September 2011.

23.  The applicant provides a Memorial Medical Group Orthopedics form letter that shows the applicant had undergone surgery for total revision right knee replacement which could result in being off from work for 12 weeks or longer.  The bottom margin indicates the applicant was off from 29 October 2012 to 16 January 2013.  A second form letter, dated 22 January 2013, that shows a physician determined she had not reached maximum medical improvement and recommended that she return to light duty with temporary restrictions for 2 months and then return for a follow-up medical evaluation.

24.  The applicant's DA Form 2166-8 (NCO Evaluation Report) for the period 6 March 2012 through 15 April 2013 shows her rank/pay grade as SSG/E-6 with a DOR of 12 August 2008 and her PMOS as 42A.  It is noted that she was exempt from the Army Physical Fitness Test standards due to a medical profile, but was able to perform all assigned duties.

25.  In an e-mail, dated 11 March 2013, the applicant informed numerous people that she was going to submit an application for voluntary retirement.  She stated that she realized she was going before a medical board, but wanted to submit it for the future.  A DA Form 4187 (Personnel Action), dated 11 March 2013, shows the applicant submitted an application for voluntary retirement, effective 30 September 2013, as an exception to paragraph 12 and 12c of Army Regulation.  

26.  Her record contains a DA Form 7652 (Physical Disability Evaluation System (PDES) – Commander's Performance and Functional Statement), dated 1 April 2013, showing the applicant's commander indicated she:

* was not on a semi-centralized or centralized promotion list
* had not previously held a higher rank during her current period of service
* medical conditions/limitations affected the unit accomplishing their mission
* should not be retained

27.  A DA Form 3349 (Physical Profile), dated 4 April 2013, shows the applicant was assigned a permanent physical profile due to bilateral knee pain, right eye blindness, hearing loss, and sleep apnea.  As a result, her PULHES rating was established as "213331."  It was determined that she did not meet the retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and she was referred to the Integrated Disability Evaluation System (IDES) to undergo a medical evaluation board (MEB). 

28.  The applicant provides a letter, dated 31 October 2013, that she sent to a U.S. Senator.  As background, she informed the Senator that her military medical care provider had identified a potentially unfitting medical condition and referred her to the IDES.  As a result of this referral, a previously scheduled surgery on her right knee had been cancelled on or about 23 August 2013.  A caseworker at Reynolds Army Community Hospital had informed her that the surgery was cancelled because it had not been approved by the hospital commander as is required for all Soldiers in the medical board process.  On 30 August, the surgery was approved to take place on 4 November.  She told the Senator that the purpose for this letter was the fact that she had been advised that following her surgery she would not be extended on active duty beyond her scheduled retirement date and would have to undergo physical therapy with the Department of Veterans Affairs (VA) healthcare system and start clearing while on convalescent leave.  She could not believe that this was happening to a Soldier with over 20 years of service.  In closing, she asked the Senator's assistance and requested to be allowed to remain on active duty for a suitable period of time to recover from knee surgery and then medically retire.

29.  The applicant provides documentation from the Sisters of Saint Mary, Saint Anthony Bone and Joint Hospital, Oklahoma City, OK, which shows she was admitted on 4 November 2013, underwent surgery in the form of right revision total knee arthroplasty (TKA), abundant scar excision, patellectomy, and was discharged on 7 November 2013.  It was determined that her rehabilitation potential was good.

30.  A Physical Disability Information Report, dated 10 June 2014, and U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, OK, Orders 162-1314, dated 11 June 2014 (as amended by Orders 240-1307, dated 28 August 2014), each show the applicant was to be released from her assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit her retirement for permanent physical disability with a disability rating of 60 percent.  The effective date of her retirement was 8 September 2014 and she was to be placed on the retirement list the following day.  Her current rank/pay grade was SSG/E-6, but her retired rank/pay grade was to be SFC/E-7, based the highest rank/pay grade she had previously satisfactorily held.  The authority cited for her retirement due to permanent physical disability was Army Regulation 635-40.  Her disability was not based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.  It was neither incurred in a combat zone nor incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense in the National Defense Authorization Act of 2008, Section 1646 or Title 26, U.S. Code, section 104.

31.  The applicant's narrative summary, MEB Proceedings, and Physical Evaluation Board (PEB) Proceedings are not available for review with this case.  However, she underwent a medical examination in conjunction with her retirement processing in June 2014 which shows she suffered from numerous maladies, several of which rendered her unfit for continued service.
32.  The applicant provides email correspondence, dated from 26 June to 1 July 2014, that shows she sought clarification as to why the authority cited on her retirement orders was Army Regulation 635-40 rather than Army Regulation 635-200, chapter 12.  She noted that her voluntary request for retirement due to length of service had been turned down because she was pending an MEB and contended that she should be allowed to retire with dignity and respect of earned time due to the length of her service rather that due to physical disability.  She did not provide a copy of the addressee's response to her concerns.

33.  The applicant's DD Form 214 (as amended by DD Form 215, dated 28 August 2014) shows she was honorably retired on 8 September 2014 with over 20 years of active Federal service (AFS) and over 30 years of combined (active and inactive) service.  This document shows in:

	 a.  item 4a, the rank of SSG;

	 b.  item 4b, the pay grade of E-6;

	 c.  item 18 (Remarks), placed on the retired list in the rank/pay grade of SFC/E-7;

	 d.  item 25, retired under the provisions of Army Regulation 635-40, chapter 4;

	 e.  item 26 (Separation Code), Separation Program Designator (SPD) Code was SEJ;

	 f.  item 27, RE Code was 4; and

	 g.  item 28, retired due to "Disability, Permanent (Enhanced)."

34.  The applicant's record is void of any indication that:

* she held the rank/pay grade of SFC/E-7 at the time of her separation
* she was found to be physically fit for retention subsequent to being placed into the IDES, but prior to her retirement
* her November 2013 surgery was not factored into her overall disability rating of 60 percent
* she submitted a request for CRSC consideration to the Commander, U.S. Army Physical Disability Agency (PDA), c/o The Adjutant General Directorate, 1600 Spearhead Division Avenue, Fort Knox, KY  40122

35.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 deals with retirement for length of service and provides that Soldiers who have completed 20, but less than 30 years of AFS and who have completed all required service obligations are eligible, but not entitled, to retire upon request.

36.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the PDES/IDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES/IDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB
* upon receipt of a permanent medical profile, P3 or P4, and are referred by an MAR2
* when command-referred for a fitness-for-duty medical examination
* by the Commander, HRC

	c.  The PDES/IDES assessment process involves two distinct stages: the MEB and PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.
A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

37.  Army Regulation 635-40 establishes the Army PDES/IDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

38.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of rating Disabilities.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent

39.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  

40.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code SEJ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24, for Disability, Permanent (IDES).

41.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that RE code 4 was the proper code to assign to members separated with SPD code SEJ.
42.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 4 applies to persons who are separated from their last period of service with a nonwaivable disqualification.  This includes anyone separated for any reason (except length of service retirement) with 18 or more years of AFS.  These people are ineligible for reenlistment.

	b.  RE code 4R applies to persons who are retired for length of service with 15 or more years AFS.  These people are ineligible for reenlistment.

43.  CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10 percent disabling.  

44.  Army Regulation 635-8 (Separation Processing and Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  This regulation, in pertinent part, also states:

	a.  the active duty rank and pay grade on the date of separation will be entered in Items 4a and 4b of the DD Form 214, respectively.

	b.  for enlisted Soldiers retiring after completing 30 or more years of active military service, specify the grade (indicated in the retirement order) to which the Soldier will be advanced on the retired list per Title 10, U.S. Code, section 3964.

45.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to them.  Current policy requires applicants to show that their application for CRSC was considered and denied at least three times by the Commander, U.S. Army PDA, c/o The Adjutant General Directorate, 1600 Spearhead Division Avenue, Fort Knox, KY  40122 before the ABCMR may consider their application for CRSC.  Until such a determination is made, the ABCMR cannot take action on their application for CRSC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her military record was carefully considered.

2.  Evidence shows the applicant was promoted to both SSG/E-6 and SFC/E-7 while serving in the USAR.  Contrary to the applicant's contention, there is no evidence showing she was ever reduced in rank/pay grade as a result of punishment under the UCMJ.  Evidence clearly shows that on 12 August 2008, she voluntarily enlisted in the RA in the rank/pay grade of SSG/E-6 for training in a new MOS after being advised that there were no SFC/E-7 vacancies in her MOS and that policy prohibited any first assignment for any SGT/E-5 or above that required retraining.  Evidence also shows the fact that reentry rank/pay grades are based upon the needs of the Army, which was thoroughly explained to the applicant in previous appeals to this Board in 1987 and 1991.

3.  Evidence clearly shows the applicant was serving in the rank/pay grade of SSG/E-6 on the date of her separation and then placed on the retired list the next day in the rank/pay grade SFC/E-7 based upon the fact she satisfactorily held that rank in the USAR prior to her reentry onto active duty.  Therefore, her DD Form 214 is properly constituted and there is no need for correction of the document as it pertains to her rank/pay grade.

4.  Although the applicant had more than 20 years of AFS, evidence clearly shows the catalyst for her retirement was the fact that she was found to be medically unfit for continued service due to permanent physical disabilities in accordance with the provisions of Army Regulation 635-40.  She did not submit a request for voluntary retirement due to length of service until after she was referred to the IDES and it was determined that it would be in her best interest to deny her request so she could complete the medical board process.  The evidence of record confirms that her processing through the Army's IDES ultimately led to her retirement from active duty by reason of permanent physical disability with a disability rating of 60 percent.  The applicant has not provided any evidence that shows her surgery for a loose femur and tibia and her third full knee replacement, which occurred on 4 November 2013, was not taken into consideration when determining her disability rating in June 2014.  In absence of evidence to the contrary, it is reasonable to presume administrative regularity regarding her disability rating.  Although the applicant contends that retirement due to a permanent disability rather than length of service is somehow detrimental to her future, it actually entitles her to numerous financial benefits to which she would not otherwise be entitled.

5.  The evidence also shows the applicant was assigned the appropriate narrative reason for separation, SPD code of SEJ, and RE code of 4 at the time of her retirement

6.  The CRSC criteria is specifically for those military retirees who have combat related disabilities.  Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.  Although the applicant has submitted evidence to show that her conditions are service related and work related, she has not submitted any evidence which would show that these conditions are combat related.  Without evidence to establish a direct, causal relationship to the applicant's service-connected disabilities to war or the simulation of war, there appears to be insufficient basis on which to grant her request.  Additionally, there is no evidence showing the applicant has been denied CRSC by the USPDA on three occasions as required.  Therefore, it would be premature for this Board to render a decision on her request for CRSC prior to exhausting her administrative remedies.

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)                                         AR20140013463



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