RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070009464 


	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.  




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, correction of his records to show he was promoted to the rank of Master Sergeant (MSG) pay grade E-8, per Army Regulation 600-8-19.

2.  The applicant states, in effect, that he was released from Title 10 orders before he was promoted to the next higher grade.  He also states that a medical disability applies.

3.  The applicant provides Orders 094-583 dated 4 April 2007, Orders 172-007 dated 21 June 2005, Orders 152-05 dated 1 June 2006 and 13 pages of excerpts from his medical records which consist of his physical profile, a DD Form 2216E (Audiometric Data), Progress Notes, a Report of Medical Examination, a Report of Medical History and two laboratory reports.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show he enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 27 March 1967.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  On 26 March 1970, he was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR).  The applicant served in the USAR from 27 March 1970 to 15 February 1973.  The applicant had no military service from 16 February 1973 until 10 February 1984.  He enlisted in the Alabama Army National Guard on 11 February 1984, and his service was continuous through enlistment and reenlistments.

2.  The applicant's military service records contain a copy of the Alabama Army National Guard, Personnel Service Center, Enterprise, Alabama Orders 120-14, dated 5 August 1992, which show, in pertinent part, that the applicant was promoted to the rank and grade of Sergeant First Class (SFC)/pay grade E-7, effective 15 March 1992.

3.  On 5 July 2005, while a member of the Army National Guard of Alabama, he was ordered to active duty in support of Operation Enduring Freedom in MOS 62B (Construction Equipment Repairer).  On 4 July 2006, the applicant was honorably released from active duty for completion of the required period of active service and transferred back to his unit in the rank and pay grade of SFC/ E-7.   

4.  The applicant's military service records also contain a copy the Department of the Army Heidelberg Transition Center, Heidelberg Germany Orders 152-05, dated 1 June 2006, these orders confirm that the applicant was released from active duty and transferred back to his unit in Alabama on 4 July 2006, in the rank of SFC.

5.  The applicant's military service records contain a copy of State Military Department, Joint Force Headquarters, Alabama National Guard, Montgomery, Alabama, Orders 094-583, dated 4 April 2007.  These orders show, in pertinent part, that the applicant was honorably discharged from the Army National Guard on 1 May 2007, and transferred to the Retired Reserve in the rank of SFC 
(E-7), effective 1 May 2007.

6.  The Department of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service NGB Form 22 shows that the applicant was honorably retired from the Army National Guard on 1 May 2007, under the provisions of National Guard Regulation 600-200, 8-35(8) by reason of being medically unfit for retention per Army Regulation 40-501, and he was transferred to the Retired Reserve.  The applicant’s NGB Form 22, further shows in Item 5a (Rank) and Item 5b (Pay Grade) that he held the rank and pay grade of SFC/E-7 on the date he retired from the Army National Guard.  Item 6 (Date of Rank) contains the entry, "92 03 15" (i.e., 15 March 1992).  The applicant served a total of 27 years, 2 months and 21 days of military service for retired pay. 

7.  The applicant's military service records are absent any orders or other evidence that shows he was promoted to MSG or served in the rank of MSG at any time during his military career.  

8.  During the processing of this case, an advisory opinion was obtained from the Department of the Army and the Air Force National Guard Bureau, Arlington, Virginia, Chief Personnel Division, dated 19 March 2008.  The Chief recommends disapproval of the applicant’s request for promotion to MSG.  Simply being on the promotion selection list does not guarantee that a Soldier will be promoted during the fiscal year, because promotions are based on the availability of positions.  The applicant requested to be administratively separated and to receive severance pay. 

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 1, paragraph 1-20 (c) provides that Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted to the designated grade effective the day before placement on the retired list.   The applicant was administratively separated not medically discharged.   

10.  Army Regulation 600-8-19, 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 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.

11.  Title 10 of the United States Code, Section 3961 (10 USC 3961), provides the legal authority for the retired grade of Army personnel on the Retired list.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.

12.  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 separation documents.  It states, in pertinent part, that Grade, Rate or Rank and Pay Grade will reflect the active duty grade or rank and pay grade (respectively) at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should be corrected to show promotion to the rank of MSG/E-8 prior to his retirement was carefully considered and found to be insufficient in evidentiary basis to support granting the requested relief.


2.  The evidence of record shows that the highest rank the applicant held while serving in an active duty status was SFC/E-7; that he served satisfactorily in the Army National Guard in the rank of SFC (E-7); and that he completed 27 years, 
2 months and 21 days of total active service for retired pay at the time he was administratively separated on 1 May 2007.  Although his NGB Form 22 shows the authority and reason as (medically unfit for retention) there is no evidence in his record that supports a medical retirement.  The applicant’s military service records are absent evidence that shows that he was referred to a medical or a physical evaluation board and the applicant did not submit any evidence in support of his allegation.  

3.  By regulation, the rank and pay grade held on the date of separation will be entered in Item 5a and Item 5b of the NGB Form 22.  The evidence of record confirms the applicant held the rank and pay grade of SFC/E-7 on the date he retired.  Thus, there is no error with respect to the entries in Item 5a, Item 5b of his NGB Form 22 and the retired grade in which the applicant was placed on the Retired list is correct.  Therefore, the applicant is not entitled to correction of his rank/pay grade.

4.  By law, a member retired by reason of physical disability will not be denied promotion, if already in a promotable status.  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.  However, there is no evidence and the applicant has not provided any evidence which shows that he was already in a promotable status at the time of retirement and that he was retiring by reason of a physical disability. 

5.  Therefore, in order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.









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


ABCMR Record of Proceedings (cont)                                         AR20070009464



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508