IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019832 


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 discharge orders to show she was discharged in the rank of sergeant (SGT).

2.  The applicant states her discharge orders show she was discharged in the rank of specialist (SPC) on 30 September 2008; however, she was promoted to the rank of SGT on 18 November 2008 with an effective date of 19 November 2005.

3.  The applicant provides copies of her discharge and promotion orders.

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 enlisted in the U.S. Army Reserve (USAR) in pay grade E-4 on 3 July 2001 for a period of 8 years.  She completed active duty for training as an administrative specialist at Fort Jackson, South Carolina, and was returned to her USAR unit.

3.  On 25 August 2008, orders were published by the Army Physical Disability Agency directing that the applicant be discharged in the rank of SPC on 30 September 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to permanent disability with a 20-percent disability rating.

4.  She was discharged on 30 September 2008 in the rank of SPC with entitlement to severance pay for 2 years and 3 months of service.

5.  On 18 November 2008, orders were published by Headquarters, 210th Regional Support Group, in Aguadilla, Puerto Rico, promoting the applicant to the rank of SGT effective 19 November 2005.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her discharge orders should be corrected to reflect her rank as SGT has been noted and appears to have merit.

2.  The available evidence shows that her promotion orders were published after her discharge orders were published with an effective date of promotion before the effective date of discharge.  Accordingly, it appears the Army Physical Disability Agency was unaware of her promotion at the time.

3.  Therefore, her discharge orders should be corrected to show she was discharged in the rank of SGT with entitlement to all back disability severance pay (and back pay and allowances, if applicable) that flow from her promotion and this change.

BOARD VOTE:

__X____  ___X____  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 amending her discharge orders to show she was discharged in the rank of SGT with entitlement to all back disability severance pay (and back pay and allowances, if any) that flow from this promotion and change.



      _______ _ __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)                                         AR20110019832



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ABCMR Record of Proceedings (cont)                                         AR20110019832



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