IN THE CASE OF:  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20140016547 


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 the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 27 July 2009:

* item 4a (Grade, Rate or Rank) - change to read SFC (sergeant first class)
* item 4b (Pay Grade) - change to read E-7
* item 14 (Military Education) - add Transportation Deployment and Distribution - Advanced Noncommissioned Officer's Course (ANCOC)

2.  The applicant states identification card employees told him it didn't matter that an entry in item 18 (Remarks) of his DD Form 214 stated his retired list grade was SFC.  He was told the rank of SFC must show in item 4a (Grade, Rate or Rank) and pay grade E-7 must show in item 4b (Pay Grade) of his DD Form 214. His completion of ANCOC was not entered on his DD Form 214.

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* certificate for completion of ANCOC
* DD Form 214
* U.S. Army Garrison, Fort Eustis, Military Personnel Division, Fort Eustis Orders 149-0011, dated 29 May 2009
* U.S. Army Garrison, Fort Eustis, Military Personnel Division, Fort Eustis Orders 166-0006, dated 15 June 2009
* four congratulatory letters
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.  On 20 February 1997, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 88K (Watercraft Operator).

3.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 July 2004.

4.  A DA Form 1059, dated 23 February 2007, shows he satisfactorily completed the Transportation Deployment and Distribution Course - ANCOC during the period from 23 January - 23 February 2007.

5.  He provided four congratulatory notes for his selection for promotion to SFC from the following individuals:

* Acting Division Rear Commander, Headquarters, Fort Drum, NY, dated 
24 March 2009
* Command Sergeant Major (CSM), Headquarters, 7th Sustainment Brigade, Fort Eustis, VA, dated 24 March 2009
* Battalion CSM, 24th Transportation Battalion, Fort Eustis, dated 24 March 2009
* Regimental CSM, U.S. Army Transportation Center and School, Fort Eustis, dated 26 March 2009

6.  On 22 May 2009, an informal Physical Evaluation Board (PEB) found the applicant physically unfit and recommended a combined disability rating of 
30 percent.  The PEB recommended he be placed on permanent disability retirement.

7.  On 27 July 2009, he was retired by reason of permanent disability.  His 
DD Form 214 contains the following entries:
* item 4a - "SSG"
* item 4b - "E06"
* item 12h (effective date of pay grade) - "2004 07 01" (1 July 2004)

8.  Item 14 of his DD Form 214 does not show he completed ANCOC.

9.  U.S. Army Garrison, Fort Eustis, Military Personnel Division, Fort Eustis issued the following orders:

* Orders 149-0011, dated 29 May 2009 - placed him on the Retired List by reason of permanent disability effective 28 July 2009.  His retired grade of rank is shown as SSG
* Orders 166-0006, dated 15 June 2009 - amended Orders 149-0011, dated 
29 May 2009.  His retired grade of rank was changed to read "SFC."

10.  There are no orders in his official military personnel file (OMPF) promoting him to SFC.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 
Paragraph 1-20c states, per the provisions of Title 10, U.S. Code, section 1372, Soldiers 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.

12.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  The regulation stated that formal in-service (full-time attendance) training courses successfully completed during the period of service covered would be entered in item 14 (Military Education [Course title, number of weeks, and month and year completed]).

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in his OMPF promoting him to SFC.  His retirement orders were amended to show his retired grade of rank as SFC.  Therefore, it is reasonable to conclude he was on a valid promotion list to SFC at the time of his retirement.

2.  A Soldier on a promotion list at the time of retirement for disability is to be promoted to the promotion list grade effective the day before placement on the Retired List.
3.  Therefore, his DD Form 214 should be amended to show he was an SFC, pay grade E-7 with an effective date of grade of 27 July 2009.

4.  The DA Form 1059 shows he completed the 4-week Transportation Deployment and Distribution Course - ANCOC on 23 February 2007.  Therefore, this course should be added to item 14 of his DD Form 214.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Showing he was promoted to SFC/pay grade E-7 effective 27 July 2009.

	b.  Amending his DD Form 214 with a separation date of 27 July 2009 as follows:

* Item 4a - delete "SSG" and enter "SFC"
* Item 4b - delete "E06" and enter "E-7"
* Item 12h - delete "2004 07 01" and enter "2009 07 27"
* Item 14 - add Transportation Deployment and Distribution (ANCOC), 	4 weeks, February 2007




      ___________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)                                         AR20140016547



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ABCMR Record of Proceedings (cont)                                         AR20140016547



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