IN THE CASE OF:
BOARD DATE: 14 May 2015
DOCKET NUMBER: AR20140016760
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he was a sergeant, pay grade E-5 when retired due to physical disability.
2. The applicant states his pay grade is incorrect on his DD Form 214.
3. The applicant provides copies of:
* DD Form 214 (Member copy 4)
* Orders 189-0001, Fort Buchanan, Puerto Rico, dated 8 July 2009
* Order D256-43, United States Army Physical Disability Agency, dated 12 September 2012
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 4 March 2008, the applicant entered active duty as an Army National Guard (ARNG) Soldier.
3. Orders 103-0001, Fort Buchanan, Puerto Rico, dated 13 April 2009, announced the applicant's release from assignment and duty due to physical disability. These orders further show:
* Effective date of retirement: 21 May 2009
* Retired grade/Date of Rank: Specialist, E-4/1 July 2002
4. On 21 May 2009, the applicant was issued a DD Form 214 for this period of service that shows:
* 4a (Grade, Rate or Rank) "SPC"
* 4b (Pay Grade) "E04"
* 12h (Effective Date of Pay Grade) 1 July 2009
5. On 8 July 2009, Orders 189-0001, as provided by the applicant, amended his retirement Orders 103-0001. The orders were changed to show his retired grade as sergeant/E-5 with an effective date of rank of 21 May 2009.
6. Orders D256-43, as provided by the applicant, announced his removal from the temporary disability retired list effective 12 September 2012. These orders show his rank as sergeant.
7. Army Regulation 635-5 (Separation Documents), as in effect at the time, provided detailed instructions for completing separation documents, including the DD Form 214. It provided that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. Entries for Item 4a (Grade, Rate of Rank) and 4b (Pay Grade) are to reflect the Soldier's rank and pay grade at the time of separation. In addition, item 12h should show the Soldier's effective date of pay grade.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show that he was a sergeant, pay grade E-5 when retired due to physical disability effective 21 May 2009.
2. The available evidence shows that the applicant was promoted to sergeant, pay grade E-5 in conjunction with his involuntary retirement due to physical disability on 21 May 2009. However, his DD Form 214 does not reflect his correct rank, pay grade and effective date of promotion.
3. The available evidence indicates that the applicant was in a temporary disability retired status from 21 May 2009 until 12 September 2012 as a specialist, pay grade E-4 as per his DD Form 214. The subsequent order amendment published in July 2009 changed his rank and pay grade to sergeant, pay grade E-5. However, his DD Form 214 was not corrected at that time. Therefore, the applicant's DD Form 214 with a separation date of 21 May 2009 should be corrected to show rank, pay grade and date of rank as sergeant, E-5 and 21 May 2009.
4. In view of the above, the applicant's request should be granted.
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 showing in Item 4a and 4b the applicant's rank and pay grade as sergeant, E-5, and item 12h to show 21 May 2009.
__________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) AR20140016760
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ABCMR Record of Proceedings (cont) AR20140016760
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