IN THE CASE OF: BOARD DATE: 8 September 2010 DOCKET NUMBER: AR20100020251 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 that his records be corrected to show he was retired by reason of permanent disability in the rank and pay grade of sergeant (SGT) E-5. 2. The applicant states that he was on the promotion standing list for promotion to the rank of SGT E-5 at the time he was retired for permanent disability; however, he was retired in the rank and pay grade of Specialist (SPC) E-4. He goes on to state that the Army Regulation concerning enlisted promotions provides that enlisted personnel will be retired at his or her promotable grade if retired medically. 3. The applicant provides a copy of his Enlisted Records Brief showing he was on the promotion standing list with a score of 350 promotion points in military occupational specialty (MOS) 11B2O. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 18 March 2004 for a period of 5 years and training as an infantryman. He completed one-station unit training (OSUT) at Fort Benning, Georgia and remained assigned to Fort Benning as a light weapons infantryman. 2. He deployed to Iraq on 17 January 2005 and was awarded the Combat Infantryman Badge (CIB) on 26 February 2005. He was advanced to the pay grade of E-4 on 1 October 2005 and he departed Iraq on 26 November 2005 for Fort Benning. 3. He again deployed to Iraq on 9 March 2007 and was awarded the Purple Heart on 23 May 2007 for wounds received as a result of hostile enemy action. He departed Iraq on 28 June 2007 for Fort Benning. 4. On 23 June 2008, a Physical Evaluation Board convened at Fort Sam Houston, Texas which determined that the applicant was unfit for duty and recommended that he be retired by reason of permanent disability with a combined disability rating of 50%. The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 5. On 14 September 2008, the applicant was retired by reason of permanent disability and was placed on the Retired List in the pay grade of E-4 effective 15 September 2008 with a 50% disability rating. He had served 4 years, 5 months and 27 days of active service. 6. Paragraph 3-3 of Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) provides that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, title 10, United States Code.) 7. Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability. It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: a. the grade in which he is serving on the date when his name is placed on the Retired List; b. the highest grade in which he served satisfactorily; or c. the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that he should have been placed on the retired list in the rank and pay grade of SGT/E-5 has been noted and appears to have merit. 2. The applicant was on the promotion standing list for promotion to the rank of SGT/E-5 at the time he was retired by reason of permanent disability. By law, members of the Armed Forces being retired for disability are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served unless they are pending promotion to a higher grade. 3. The applicant was serving in the pay grade of E-4 at the time he was retired in the pay grade of E-4; however, by virtue of the fact that he was on the promotion standing list for the pay grade of E-5, he should have been advanced on the Retired List under operation of law to the rank of SGT/E-5 instead of being retired in the grade he was serving. 4. Accordingly, it would be in the interest of justice at this time to correct his records to show he was placed on the Retired List in the rank of SGT/E-5 effective 15 September 2008 with entitlement to all back pay and allowances that result due to this change. 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 showing he was placed on the Retired List in the rank of SGT/E-5 effective 15 September 2008, with entitlement to all back pay and allowances that flow from this 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) AR20100020251 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100020251 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1