IN THE CASE OF: BOARD DATE: 9 December 2010 DOCKET NUMBER: AR20100015061 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 his rank and pay grade as sergeant first class (SFC)/E-7. 2. The applicant states he was medically discharged during a promotion hearing for SFC. He worked very hard to earn his promotion which he was to receive in May 2006, but he did not receive his SFC rank at discharge. 3. He provided a DD Form 214; Orders 104-0030; Headquarters, National Training Center and Fort Irwin, dated 14 April 2006; and enlisted record brief. 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 records show he enlisted in the Regular Army on 20 August 1997 having prior service in the Regular Army and the Army National Guard. He held military occupational specialty 63B (Light Wheeled Vehicle Mechanic), served through multiple extensions or reenlistments in various staff or leadership positions, and attained the rank/grade of staff sergeant (SSG)/E-6. 3. On 17 February 2006, his records were considered by a medical evaluation board that referred him to a physical evaluation board (PEB). A PEB subsequently convened on 3 April 2006 and found his medical condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit. He was rated under the Veterans Affairs Schedule for Rating Disabilities and granted a percentage of disability rating. The PEB recommended he be separated with entitlement to severance pay if otherwise qualified. He concurred with the PEB's finding and recommendation and waived his right to a formal hearing on the same date. 4. Orders 104-0030, issued by Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, on 14 April 2006, ordered his discharge from active duty by reason of physical disability. The orders listed his rank as SSG in the standard name line and stated he would be discharged effective 8 May 2006 in pay grade E-6. 5. He was honorably discharged on 8 May 2006 by reason of disability with entitlement to severance pay. His DD Form 214 for the period ending 8 May 2006 shows his rank/pay grade as SSG/E-6 with an effective date of 1 April 2003. This form also shows he was entitled to or received $70,768.80 in severance pay. 6. There is no indication in the available records that shows he was in a promotable status at the time of his discharge. 7. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-19d, states that per Title 10, U.S. Code, section 1212, a Soldier 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. The Soldier will be promoted to the designated grade effective the Soldier's separation date. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his DD Form 214 to show his rank and pay grade as SFC/E-7 was carefully considered; however, there is insufficient evidence to support his request. 2. Regulatory guidance allows for the promotion of Soldiers separated for disability with severance pay provided they were on a promotion list at the time of separation. In the applicant's case, there is no evidence that shows he was promotable at the time of his separation. Absent such evidence there is an insufficient basis on which to grant award of 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 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) AR20100011759 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100015061 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1