BOARD DATE: 16 May 2013 DOCKET NUMBER: AR20120019440 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, that his rank/grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and retirement grade be changed to master sergeant (MSG)/E-8. 2. He states he did not receive his promotion orders until after he had processed through the transition office. He adds after receiving his promotion orders to MSG on 1 March 2005, he contacted the personnel at the Transition/Retirement Services Office, Fort Bragg, NC, and was told that due to his disability, he could not meet the service remaining requirement and therefore his original retirement orders showing his grade as sergeant first class (SFC)/E-7 would not be changed. 3. He provides his DD Form 214 and Orders Number 41-9, dated 10 February 2005. 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. After having prior service in the U.S. Army Reserve, on 14 August 1992 the applicant enlisted in the Regular Army. 3. U.S. Army Physical Disability Agency Orders D342-02, dated 7 December 2004, show he was honorably retired on 7 March 2005 because of physical disability and placed on the Temporary Disability Retired List. His retirement grade is listed as SFC/E-7. 4. U.S. Army Human Resources Command Orders Number 41-9, dated 10 February 2005, show on 1 March 2005 he was promoted to MSG with an effective date and that a date of rank of 1 March 2005. 5. Item 4a/4b (Grade, Rate, or Rank/Pay Grade) of his DD Form 214 shows SFC/E-7. The effective date of pay grade in item 12h is listed as 1 February 2002. 6. The Total Army Personnel Database - Reserve (TAPDB-R) lists his grade as MSG. His date of rank is listed as 1 March 2005. 7. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. The regulation stipulates that the rank and pay grade held on the date of separation will be entered in items 4a and 4b. DISCUSSION AND CONCLUSIONS: Promotion orders and the TAPDB-R confirm that the applicant was promoted to MSG/E-8 on 1 March 2005. This is the rank and pay grade he held on the date of his separation and his DD Form 214 and retirement orders should be corrected accordingly. 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. amending Orders D342-02 dated 7 December 2004 to show he was placed on the retired list in the rank/grade of MSG/E-8; and b. amending DD Form 214 as follows: * Item 4a - delete the current entry and replace it with "MSG" * Item 4b - delete the current entry and replace it with "E-8" * Item 12h - delete the current entry and replace it with "2005 03 01" _______ _ 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) AR20120019440 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120019440 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1