RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 April 2008
	DOCKET NUMBER:  AR20070007507 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director



Analyst


The following members, a quorum, were present:




Chairperson



Member



Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her retirement grade be changed to sergeant first class pay grade E-7 with an effective date of 20060923.  She also requests that the Army Commendation Medal (ARCOM) and her disability rating of 30 percent be added to her separation document (DD Form 214).

2.  The applicant states, in effect, that her promotion was not received upon retirement according to AR 600-8-19, that she did not receive her award until after she retired, and that there is no disability rating identified on her DD Form 214.

3.  The applicant provides copies of Orders 05-122 dated 23 August 2006, amended Orders C-07-691270A01 dated 2 May 2007, ARCOM Certificate with annotated PO [Permanent Orders] 308-1 dated 061104, and a copy of her DD Form 214 in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she entered active duty on 12 January 2003 with 12 years, 1 month, and 6 days of prior active service.  The applicant’s military occupational specialty (MOS) was 42A (Human Resource Specialist).  The highest rank she attained while serving on active duty was staff sergeant (SSG) with an effective date of rank of 1 May 2004.  

2.  On 14 June 2005, a Medical Evaluation Board (MEB) diagnosed the applicant with Multiple Sclerosis and referred her case to a Physical Evaluation Board (PEB) for evaluation.  The applicant concurred with the MEB’s findings and recommendation.  

3.  On 27 April 2006, the applicant’s case was evaluated by a PEB convened at Fort Sam Houston, Texas.  The PEB found that the applicant was physically unfit based on her diagnosed condition of Multiple Sclerosis.  Based on a review of the objective medical evidence of record, the applicant was found unfit with a combined rating of 30 percent and placed on the Temporary Disability Retired List (TDRL), because her condition was not sufficiently stable for final adjudication.  

4.  On 8 May 2006, the applicant concurred with the PEB’s findings and waived a formal hearing.  


5.  Orders C-07-691271, dated 19 July 2006, issued by the Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri released the applicant from assignment and duty because of physical disability that was incurred while entitled to basic pay and under conditions that permit placement on the TDRL, effective 23 August 2006, in pay grade E-6, with a effective date of rank of 1 May 2004.   

6.  Orders 05-122, dated 23 August 2006, issued by the Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri promoted the applicant from pay grade E-6 to pay grade E-7 with an effective date of rank of 23 August 2006.   

7.  On 23 August 2006, the applicant was honorably retired under the provisions of paragraph 4-24b(2), Army Regulation 635-40, by reason of Disability, Temporary.  The DD Form 214 she was issued at the time indicates she held the rank and pay grade of SSG/E-6 at the time of her separation and that she had completed 3 years, 7 months, and 12 days of net active service this period; and 12 years, 1 months, and 6 days of total prior active service and 6 years 9 months and 18 days of total prior inactive service.

8.  On 14 November 2006, the applicant was awarded the Army Commendation Medal (ARCOM) for exceptionally meritorious service from 1 May 1981 to 
24 August 2006, during her career in the United States Army and Army Reserve. Her rank is identified as Staff Sergeant on her award certificate. 

9.  Orders C-0769127A01 dated 2 May 2007, issued by the Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri, amended her retirement grade/date of rank from SSG/E-6 to permanent retirement grade/date of rank of SFC/E-7, effective 23 August 2006. 

10.  During the processing of this case, an advisory opinion was obtained from the Department of the Army, U.S. Army Human Resource Command (HRC), St. Louis Missouri.  The advisory opinion states that the applicant was originally scheduled for promotion to be effective on 1 January 2007.  Army Regulation 600-8-19, provides for the promotion of Soldiers, on a promotion list, at the time of the disability retirement.  This was a change to past policy and just so happened to coincide with the applicant’s separation date.  The applicant was promoted to SFC/E-7, effective 23 August 2006, the day before being placed on the disability retired list effective 24 August 2006.  The applicant’s application states that her promotion was not received upon retirement according to AR 600-8-19.  Her promotion was done correctly in accordance with the newly released enlisted promotion regulation.  
The applicant’s application includes the amendment order that changes the 
disability orders to reflect the correct grade of SFC/E-7.  This amendment was done on 2 May 2007, which was before her effective date of entry into the Disability Retired Reserves.  The applicant should be on the disability retired list as an SFC/E-7.  The disability rating from the applicant’s DD Form 214 needs to be addressed by the separation authority or agency that has the authority to make the appropriate changes.  Recommend that both the applicant’s DD 214 be corrected to reflect the Army Commendation Medal and to reflect her correct grade of SFC/E-7.

11.  On 10 September 2007, the applicant was provided a copy of the HRC-St. Louis advisory opinion in order to have the opportunity to respond to its content.  On 23 September 2007 the applicant concurred with the contents of the advisory and did not submit any comments. 

12.  On 18 January 2008, the applicant’s case was reevaluated by a PEB.  Based on the review of the TDRL examination, the PEB found that the applicant was physically unfit and recommended a combined rating of 30 percent and permanent disability retirement.  On 24 January 2008, the applicant concurred with the PEB’s findings and waived a formal hearing. 

13.  Orders D037-06 dated 5 February 2008, issued by the Department of the Army, U.S. Army Physical Disability Agency (USAPDA), Washington DC, directed the applicant’s removal from the TDRL by reason of permanent physical disability, effective 5 February 2008 and that she be permanently retired the date following.  She was permanently retired in her current grade of rank of SFC/E-7.  

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the Army's current enlisted promotion and reduction policy.  Paragraph 1-20 contains guidance on promotion of Soldiers pending referral through the Army's PDES to an MMRB [Military Medical Review Board], MEB, or PEB.  It states, in pertinent part, that Soldiers who are pending referral to an MMRB, MEB, or PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.  It further states that under the provisions of Title 10 of the United States Code, Section 1372 (10 USC 1372) Soldiers on a promotion list at the time of retirement for disability will be 
retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.

16.  10 USC 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that at the time 
any member of an Armed Force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: the grade in which he/she is serving on the date when his/her name is placed on the Retired List, which includes the TDRL; the highest grade in which he/she served satisfactorily; or the grade to which he/she would have been promoted had it not been for the physical disability that resulted in retirement.

17.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for Block 18 (Remarks), use this block for HQDA mandatory requirements when a separate block is not available.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her DD Form 214 be corrected to show pay grade E-7 with an effective date of 23 August 2006 and to add the ARCOM to her DD Form 214 were carefully considered and found to have merit.  However, her contention to place her disability rating of 30 percent on her DD Form 214 was found to have no merit.

2.  By law, a member retired by reason of physical disability will not be denied promotion, if already in promotable status.  It further states that under the provisions of Title 10 of the United States Code, Section 1372 (10 USC 1372) Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.

3.  The evidence of record confirms that the applicant was promoted to the rank and pay grade of SFC/E-7 on 23 August 2006, the day before she was placed on the disability retired list.  It further shows that the received the amendment orders that changed the disability order to reflect the correct grade of SFC/E-7.  Therefore her DD form 214 should be corrected to reflect the correct rank and pay grade.

4.  On 18 January 2008, the applicant’s case was reevaluated by a PEB.  The PEB found the applicant physically unfit and recommended a combined rating of 30 percent and permanent disability retirement.  

5.  Orders D037-06 dated 5 February 2008, issued by the Department of the Army, USAPDA, Washington DC, directed the applicant’s removal from the TDRL by reason of permanent physical disability, effective 5 February 2008 and that she be permanently retired the date following.  The applicant is now permanently retired in her current grade of rank/grade of SFC/E-7 with a combined rating of 30 percent.  Therefore, the applicant’s proper rank/grade of SFC/E-7 should be reflected on her DD Form 214.  Further, it would serve the interest of justice and equity to provide the applicant any back pay and allowances due based on this correction to her retired rank and pay grade. 

6.  The evidence of record confirms that the applicant was awarded the ARCOM for exceptionally meritorious service from 1 May 1981 to 24 August 2006; therefore, this award should be reflected on her DD Form 214.  The applicant’s rank should also be corrected to reflect Sergeant First Class instead of Staff Sergeant that is currently annotated.

7.  There is no requirement for annotating a Soldier’s disability rating percentage on his/her DD Form 214.  Therefore, the applicant is not entitled to correction of her DD Form 214 to add her disability rating of 30 percent.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___JRS _  ___e____  __LR____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:   

	a.  amending her 23 August 2006 DD Form 214 by deleting the entry “SSG” in Item 4a and adding the entry "SFC" to Item 4a;

	b.  deleting the entry “E-6” in Item 4b and adding the entry " E-7” to Item 4b;

	c.  adding the entry “Army Commendation Medal" to Item 13;

	d.  correcting the Army Commendation Medal Certificate to reflect the applicant’s proper rank as Sergeant First Class; and

	e.  and issuing her a corrected separation document that reflect these changes.

2.  That the Defense Finance and Accounting Service (DFAS) pay the individual concerned any back pay and allowances due as a result of the corrections outlined in the preceding paragraph.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adding the applicant’s disability rating of 30 percent on her 23 August 2006 DD Form 214.



____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.