ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  15 February 2019

	DOCKET NUMBER:  AR20160009686


APPLICANT REQUESTS: 

The applicant requests, in effect, that the records be corrected to show that he was retired as a sergeant (SGT) E-5 and that the nearest relative listed on his DD Form 214 issued 9 August 2013 as his previous spouse be changed to show his current spouse.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Orders D 180-36, U. S. Army Physical Disability Agency, 29 June 2015, Permanent Disability Retirement
* Divorce Decree, 29 July 2014
* Marriage Certificate, 14 March 2015

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant enlisted in the Army on 19 January 2006.  On 27 August 2013, the applicant was found to be 50 percent disabled.  On 31 July 2013, he was transferred to the Temporary Disability Retired List (TDRL) by orders 212-0009, US Army Garrison Fort Bliss, which showed his retired grade as SGT.  On 9 August 2013, he was issued a DD Form 214 that separated him from active duty and transferred him to the (TDRL) as a corporal (CPL) E-4, and showed his nearest relative as AP, his spouse at the time.  The applicant was divorced from his spouse AP on 29 July 2014 and married to a new spouse LRR on 14 March 2015 after the DD Form 214 was issued on 9 August 2013.

3.  In accordance with Army Regulation 635-8, the DD Form 214 block 19b shows that name and address provided by the Soldier of the Soldier’s nearest relative at the time that the DD Form 214 is issued.
4.  The applicant was permanently retired on 29 June 2015.  His retirement orders, Order D 180-36, U. S. Army Physical Disability Agency, 29 June 2015, show his rank as SGT.

5.  On 27 September 2018, pursuant to the request by the applicant to the ABCMR, the Chief of the Department of the Army Promotions, U. S. Army Human Resources Command (HRC), reviewed the applicant’s records.  They found that based on junior enlisted promotion records that the applicant as a CPL was on the Command List Integrated (CLI) with only 39 promotion points effective 1 January 2010 and that his Army Physical Fitness Test (APFT) data was blank.  In accordance with Army Regulation 600-8-19, dated 27 December 2011, Table 3-3 (eligibility criteria for promotion recommendation), the completion of an APFT is a requirement for promotion recommendation.  In accordance with MILPER Message 12-309, dated 26 September 2012, subject: Removal of Ineligible Promotable Soldiers (SPC/CPL/SGT) from the Promotion Standing List, there were over 8,000 Soldiers (SPC, CPL, and SGT's) erroneously listed on the SGT/SSG promotion standing list.  On 10, 11, 15, and 
16 October 2013, HRC removed all ineligible Soldiers from the promotion standing list including the applicant.  The applicant as a CPL was not in a promotable status prior to separation from the Army and was not entitled to promotion in accordance with Army Regulation 600-8-19, paragraph 1-20 (promotion of Soldiers in the Disability Evaluation System).

6.  On 4 October 2018, the applicant was provided the above information and corrected records for comment.  As of 22 January 2019, the applicant has not provided any response.

7.  Soldiers in the Disability Evaluation System (DES) are not required to maintain an APFT qualification to be eligible for promotion.  The applicant did not have an APFT score on 1 January 2010 and was therefore removed from the promotion recommendation list.  He was not entered into the DES until 2013.

8.  Finding that the applicant had been removed from the promotion list and that he was not promoted to SGT, HRC administratively corrected the records to show that his correct retired grade of rank is CPL by issuing:
* a DD Form 215 (Correction to DD Form 214) showing the applicant’s correct military occupational specialty as 11B10 consistent with the rank of CPL
* an amendment to the applicant’s orders 212-0009, U. S. Army Garrison Fort Bliss, dated 31 July 2013, correcting his retired grade of rank from SGT to CPL
* reissuing Order D 180-36, U. S. Army Physical Disability Agency, dated 29 June 2015, showing the applicant’s rank as CPL

BOARD DISCUSSION:

1.  The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance.  The record shows the applicant as a CPL was not in a promotable status prior to separation from the Army and was not entitled to promotion in accordance with Army Regulation 600-8-19, paragraph 1-20 (promotion of Soldiers in the Disability Evaluation System).  Therefore the Board denies the applicant’s request to amend his records to show that he was retired as a sergeant (SGT) E-5.

2.  As stipulated by Army Regulation 635-8, the applicant’s DD Form 214 block 19b shows the name and address provided by the applicant of his nearest relative at the time that the DD Form 214 is issued.  The Army has an interest in maintaining the integrity of it records, including maintaining its records as they existed at the time they were created and compiled.  The data and information that is contained in such records should reflect the conditions and circumstances that existed at the time the records were created.  The Board denies the applicant’s request to change the nearest relative listed on his DD Form 214 issued 9 August 2013 to show his current spouse.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.

ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 635-8 (Separation Processing and Documents) gives instructions for preparation of the DD Form 214 (Certificate of Release or Discharge from Active Duty).  The DD Form 214 is a summary of a Soldier's period of active duty and includes a record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge.  Block 19b (Nearest Relative), the name and address of the Soldier’s nearest relative at the time of separation is provided by the Soldier.

3.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), 27 December 2011, Table 3-3 (eligibility criteria for promotion recommendation), states that the completion of an APFT is a requirement for promotion recommendation.  Paragraph 
1-20 (promotion of Soldiers in the Disability Evaluation System (DES)) states in pertinent part that:

	a.  Per the provisions of 10 USC 1372, Soldiers on a promotion list who are retired for physical disability (10 USC 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (10 USC 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability.

	b.  While in the DES, Soldiers will not be required to maintain their APFT or weapons qualification for the purpose of promotion eligibility a Soldier on a promotion list.  Soldiers within the DES who are unable to perform an APFT or qualify with a weapon will use their last score until they are medically cleared to take the APFT or qualify with a weapon.

ABCMR Record of Proceedings (cont)	 AR20160009686


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