BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015682 


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) to show his rank as "Corporal" instead of Specialist (SPC).

2.  The applicant states, in effect:

   a.  During his Medical Evaluation Board (MEB) process and transition out of the Army he was denied a lateral promotion to CPL due to initiation into the Integrated Disability Evaluation System/MEB process.  Army Regulation 600-8-19 (Enlisted Promotions), paragraph 1-20, dated 30 April 2010, states that he should not have been denied promotion to the next grade.  He has served many times as a CPL.  During his assignment with his unit he was due for promotion to CPL and then to sergeant.  Once his health provider initiated the MEB process, his commander stated that he could not be promoted because of a medical flag by the MEB process.

   b.  On 30 July 2014, he was medically retired and was placed on the Temporary Disability Retired List (TDRL).  During his assignment with A Troop, 171st Cavalry, 1st Brigade Combat Team, 10th Mountain Division, he held numerous positions of leadership as an infantryman to include team and squad leader.  He showed significant commitment and was recommended for promotion.  When his first sergeant and commander were made aware of the process being initiated, his chain of command notified him that he would not be promoted and stated the reason on the enclosed DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement).  

   c.  His chain of command at the 171st Cavalry was exceptional and in turn he performed to the best of his abilities for the unit.  His commander provided guidance and support and never showed distaste for his pending MEB status.  In fact, Captain Wxxxxxxx recommended his retention and defended the recommendation by stating his performance and overall evaluation on the DA Form 7652.  He believes the denial of his promotion was a misunderstanding because both he and the unit were unfamiliar with the PEB process and did not refer to Army Regulation 600-8-19.

3.  The applicant provides copies of the following:

* DA Form 7652
* DD Form 214
* Army Regulation 600-8-19, paragraph 1-20

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 October 2007.  He was awarded military occupational specialty (MOS) 11B (infantryman).  He served in Iraq from 11 June 2008 through 6 June 2009.  He was promoted to SPC/E-4 on 1 October 2012.

2.  He provided a copy of a DA Form 7652, dated 3 July 2013, wherein the applicant's troop commander indicated the following in:

   a.  Section II (Administrative Information) - he checked the "Yes" block and indicated the highest rank the applicant previously held was CPL; however, the commander did not explain the reason the applicant was not serving in the highest-rank previously held if the "Yes" block was checked.

   b.  Section III A (For each Soldier, regardless of condition) - he recommended retention of the applicant.

   c.  Section III B (For each Soldier with a mental disorder (including Post-Traumatic Stress Disorder (PTSD)), major depression disorders, anxiety disorder, bipolar disorder, etc.) - he commented that the applicant had demonstrated exemplary performance in the unit for the last several months.  The applicant had been in a team leader position and was among the top 2 team leaders in the platoon.  He exhibited top performance in Operation Mountain Peak and had an Army Achievement Medal pending for his performance therein. At no point had the applicant's performance deceased, nor been inhibited by any mental condition.  If he had not been flagged for a medical evaluation he would have been promoted to CPL.  The commander also checked the blocks to indicate the applicant had no difficulties.

   d.  Section III C (If Solider has a diagnosis of Traumatic Brain Injury, assess Soldier's performance) - the commander commented that the applicant had effective work relationships with both supervisors and co-workers, performed task/duties to standard, and made reasonable decisions.  

   e.  Section III D - Section III B - Periods of diminished attention or performance - he commented that the applicant did not demonstrate any diminished attention or capability, he was extremely capable.  Section III C - Makes reasonable decisions, including complex or unfamiliar ones - he commented that the applicant made reasonable decisions, including complex or unfamiliar ones, he led the squad during field exercise and made all relevant tactical decisions, effectively leading his unit.

3.  An MEB Narrative Summary, dated 26 September 2013, shows he was referred to an MEB after being diagnosed with PTSD.  The summary stated that he had been treated for psychiatric symptoms beyond 1 year and he appeared not to have met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33b and c.

4.  His record is void of the complete facts and circumstances pertaining to his separation.

5.  He was honorably retired on 29 July 2014, by reason of temporary disability, with placement on the TDRL.  He was credited with completing 6 years, 9 months, and 19 days of active service.  His DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) – SPC
* Item 4b (Pay Grade) –E-4
* Item 12i (Effective Date of Pay Grade) – 1 October 2012

6.  His Enlisted Record Brief does not show any entries showing a lateral appointment to CPL.  His record is void of any promotion instrument laterally appointing him to CPL.

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

8.  Army Regulation 600-8-19, in effect at the time, set the enlisted promotions and reductions function of the military personnel system.  The regulation stated in:

   a.  Paragraph 1-20a - Soldiers who were pending referral to a Military Occupational Specialty Medical Retention Board under Army Regulation 40-400 (Patient Administration) or referral to an MEB or a PEB under Army Regulation 635-40 would not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

   b.  Paragraph 7-11 (Lateral appointments) - All lateral appointments would be issued on a DA Form 4187 (Personnel Action).  A SPC would be appointed to CPL when the Soldier was assigned and worked in a Sergeant position.  The position must be the Soldier’s primary MOS or Career Progression MOS.  That included an SPC who could not otherwise be promoted when they do not meet the time in service requirement, or were not considered for promotion.  Soldiers would normally retain the rank of CPL and perform the duties of a noncommissioned officer; however, the appointment authority could laterally appoint a CPL to SPC without the individual’s consent for:

		(1)  Demonstrated inefficiency in technical, supervisory, or other requirements of the MOS.

		(2)  Significant loss of qualifications, including medical inability to perform the duties of CPL in that MOS as required in DA Pamphlet 611–21 (Military Occupational Classification and Structure).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to CPL in accordance with Army Regulation 600-8-19, paragraph 1-20, is noted.  However, the cited regulation does not provide for a lateral promotion of a Soldier who is pending referral to an MEB.  

2.  Although he may have served in the rank of CPL at one time, the evidence of record does not show and he did not provide sufficient evidence that conclusively shows he was ever laterally appointed to the rank of CPL prior to placement on the TDRL.

3.  His unit commander stated on a DA Form 7652 that the applicant had been in a team position which would indicate the applicant was an acting CPL at one time and not a laterally-appointed CPL.  Promotion or appointment to the rank of CPL requires a DA Form 4187 from the promotion/appointment authority.  

4.  The key issue is what rank did he hold at the time of separation?  The answer is that in compliance with governing regulations, the DD Form 214 he was issued on 29 July 2014 appears to correctly show his rank as SPC.  The available evidence shows he held the rank of SPC at the time of his separation.  Therefore, there is insufficient evidence to grant him the 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)                                         AR20140015682



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ABCMR Record of Proceedings (cont)                                         AR20140015682



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