BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150002436 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 grade as sergeant first class (SFC)/E-7 and to show he was discharged due to a permanent physical disability. 2. The applicant states his DD Form 214 shows his rank and grade as staff sergeant (SSG)/E-6 and it shows he was separated due to a temporary physical disability. He contends these entries are incorrect. 3. The applicant provides his DD Form 214 and Orders Number D38-1, issued by the U.S. Army Physical Evaluation Board (PEB), Walter Reed Army Medical Center, Washington, DC, on 29 February 2000. 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 Regular Army on 21 September 1981. He was promoted to the rank/grade of SSG/E-6 on 1 May 1990. 3. Order Number 74-43, issued by the U.S. Total Army Personnel Command on 14 March 1996, promoted the applicant to the rank/grade of SFC/E-7 with an effective date and date of rank of 1 April 1996. The special instructions stated, "SSG promoted to SFC who do not have ANCOC [Advanced Noncommissioned Officer Course] credit are promoted conditionally. Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they failed to meet the ANCOC requirement." 4. The U.S. Total Army Personnel Command, Enlisted Promotions Branch, informed the applicant by memorandum, dated 3 October 1996, that although he had been selected for promotion, he had been administratively removed from the promotion list and his promotion to SFC was revoked because he was denied enrollment in ANCOC due to his Army Physical Fitness Test failure. 5. Order Number 308-02, issued by Walter Reed Army Medical Center on 4 November 1997, directed the applicant's release from assignment and duty because of physical disability and his placement on the Temporary Disability Retired List (TDRL) effective 3 December 1997. The orders show the authorized retired grade of rank of E-6. 6. He was release from active duty and placed on the TDRL on 3 December 1997. His DD Form 214 shows his rank/grade as SSG/E-6 and the narrative reason for his separation as "Physical Disability-Temporary." 7. A PEB convened on 9 August 1999 to reevaluate his medical condition. The PEB stated that based on the TDRL examination, the PEB found that the Soldier remained unfit to reasonably perform the duties required by of his previous grade and military specialty. The Soldier's condition was considered sufficiently stable for final adjudication. The PEB assigned a 20 percent disability rating and recommended his separation with entitlement to severance pay. 8. Orders Number D67-1, issued by the U.S. Army Physical Disability Agency (USAPDA) on 7 April 2000, amended Order Number 308-02, issued by Walter Reed Army Medical Center on 4 November 1997, to show the retired grade of rank of E-7. 9. Orders Number D38-1, issued by U.S. Army PEB, Walter Reed Army Medical Center, Washington, DC, on 29 February 2000, directed the applicant's removal from the TDRL and discharge from the service due to physical disability with entitlement to severance pay, effective 29 February 2000. The orders show his rank as SFC. 10. There is no evidence in the applicant's military records that shows he was in a promotable status to the rank/grade of SFC/E-7 at the time of his release from duty and placement on the TDRL on 3 December 1997. There is also no evidence indicating he was reintegrated to the Army Promotion List to the rank/grade of SFC/E-7 prior to his discharge due to physical disability with entitlement to severance pay on 29 February 2000. 11. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated that effective 1 October 1993, the Army linked the Noncommissioned Officer Education System (NCOES) to promotion to SSG, SFC, master sergeant (MSG) and sergeant major (SGM). For promotion to SFC, a Soldier was required to be an ANCOC graduate. Soldiers selected for promotion to SSG, SFC, and SGM but who had not met the NCOES requirement would be promoted conditionally. Soldiers who failed to successfully complete or did not attend their scheduled NCOES class would be administratively reduced and removed from the promotion list. 12. Army Regulation 600-8-19 provides that in accordance with the provisions of Title 10, U.S. Code, section 1212 (Disability Severance Pay), Soldiers who are on a promotion list at the time of separation for disability with entitlement to severance pay will be paid such compensation at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the Soldiers separation date. 13. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It stated the DD Form 214 is a summary of a Soldier's most recent period of continuous active service. It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Paragraph 2-1(b)3 provided that a DD Form 214 would not be prepared for Soldiers removed from the TDRL. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his DD Form 214 should be corrected to show his rank and grade as SFC/E-7 and to show he was separated due to a permanent physical disability. 2. The evidence shows the applicant was conditionally promoted to SFC on 1 April 1996; however, he was subsequently removed from the promotion list and his promotion to SFC was revoked based of his failure to complete the NCOES requirement for promotion to SFC. 3. The evidence further shows he was placed in the TDRL in the rank and grade of SSG/E-6 on 3 December 1997 and there is no evidence indicating he was in a promotable status to SFC on the date of his placement in the TDRL. 4. The applicant's DD Form 214 was published showing he was placed on the TDRL in the rank and grade of SSG/E-6. Because the DD Form 214 is meant to reflect a Soldier's status as of the last day of active duty, the contended entries on his DD Form 214 appear to be correct. Accordingly, it would be inappropriate to make the requested changes. 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 that 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) AR20150002436 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002436 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1