RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000896 


	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:


M

Chairperson

M

Member

M

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 that he was transferred to the Temporary Disability Retired List (TDRL) in the rank/grade of master sergeant (MSG)/E-8 instead of sergeant first class (SFC)/E-7.

2.  The applicant states, in effect, that he was promoted to master sergeant (MSG)/E-8 on the same day he was placed on the TDRL.   

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 January 2007.

	b.  Headquarters, United states Army Garrison, Fort Carson, Colorado, Orders 018-0016, dated 18 January 2007, Separation and Retirement Orders. 

4.  On 26 March 2008, the applicant further provided by fax, the following additional documentary evidence in support of his application:

	a.  DA Form 3947 (Medical Evaluation Board Proceedings), dated 21 November 2006.

	b.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 January 2003.

	c.  Extract of Promotion List, dated 3 January 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he was born on 27 May 1948, enlisted in the Regular Army for a period of 3 years on 15 August 1967, and initially held military occupational specialty (MOS) 67P (Technical Inspector).  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 1 August 1970.  The highest grade he held during this period of active service was specialist five (SP5)/E-5.  

2.  The applicant’s records further show that he enlisted in the USAR on 15 August 1973 and subsequently had a series of extensions and/or reenlistments in the USAR, until 8 January 1983, when he enlisted in the Montana Army National Guard (MTARNG).  He also executed a series of extensions and/or reenlistments in the MTARNG and was promoted to staff sergeant (SSG)/E-6 on 7 October 1985 and sergeant first class (SFC)/E-7 on 19 January 2000.

3.  On 28 June 2004, the applicant was issued a permanent physical profile for hearing loss.

4.  On 6 August 2004, an MOS/Medical Retention Board (MMRB) convened at the Helena Armed Forces Reserve Center, Helena, Montana, to review the applicant’s records.  The MMRB found the applicant was diagnosed with hearing loss, but the diagnosis did not preclude him from performing his duties in his MOS at the time.  The MMRB thus ordered the applicant retained in the MTARNG in MOS 15T (Helicopter Repairman). 

5.  On 4 October 2004, the applicant was selected for promotion to MSG/E-8 by the MTARNG and his name was subsequently added to and remained on the State Promotion List until his retirement. 

6.  On 23 August 2006, the applicant was ordered to active duty for a period of 358 days to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.  

7.  On 21 November 2006, a Medical Evaluation Board (MEBD) convened at Fort Carson, Colorado, and found the applicant to have chronic diarrhea, chronic idiopathic steatorrheic malabsorption, and chronic anasarca.  Additional diagnoses that did not cause the applicant to fall below retention standards included bilateral hearing loss, hypomagnesaemia, hypokalemia, depression, insomnia, and gastroesophageal reflux disease.  The MEBD recommended referral to a PEB.  The applicant did not indicate whether he did or did not desire to continue on active duty; but, he agreed with the MEBD's findings and recommendation. 

8.  On 7 January 2007, a PEB convened at Fort Lewis, Washington, and evaluated the applicant's medical condition.  The PEB found the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 7399 and 7323, chronic idiopathic steatorrheic malabsorption with chronic diarrhea (10 to 12 per day), malnutrition, generalized edema (anasarca), weight loss, weakness, fatigue, loss of vigor and stamina, and fluid and electrolyte imbalance; all other diagnoses 

from his MEBD were determined to be not unfitting.  He was granted a 
60 percent combined disability rating.  The PEB also recommended the applicant be placed on the TDRL with reexamination in January 2008.

9.  On 18 January 2007, Headquarters, U.S. Army Garrison, Fort Carson, Colorado, published Orders 018-0016, releasing the applicant from his unit of assignment because of physical disability and placing him on the TDRL, effective 25 January 2007, in the retired grade of  SFC/E-7.

10.  The DD Form 214 he was issued at the time shows he was retired under the provisions of Army Regulation 635-40 with an honorable discharge.  His narrative reason for separation is shown as "Physical Disability-Temporary."  He had completed 5 months and 3 days of creditable active service during this period of military service.

11.  On 29 January 2007, Joint Forces Headquarters, Office of the Adjutant General, Fort Harrison, Montana, published Orders 029-003, honorably discharging the applicant from the MTARNG, effective 25 January 2007, in the grade of SFC/E-7 by reason of being placed on the TDRL.  

12.  On 15 February 2007, Joint Forces Headquarters, Office of the Adjutant General, Fort Harrison, Montana, published Orders 046-007, amending Orders 029-003, dated 29 January 2007, to show the applicant’s highest grade held as MSG/E-8 instead of SFC/E-7.  

13.  Title 10, U.S. Code, section 1372, states that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:  (1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired; (2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; (3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or (4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.
14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 7-20 of the regulation states, in pertinent part, that Soldiers undergoing medical evaluation processing (MMRB/MEBD) will be considered for promotion board action.  However, they cannot be selected for promotion until they have been found qualified by a board.  Soldiers who are already promotable and pending referral to a MMRB, MEBD, or PEB will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion (see paragraph 1–20).  Currency of the Soldier’s physical examination is a function of eligibility for immediate reenlistment or extension in National Guard Regulation (NGR) 600–200, chapter 7, and Army Regulation   40–501.

15.  Paragraph 1-20 of Army Regulation 600-8-19 states, in pertinent part, that per the provisions of Title 10, U.S. Code, section 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.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was on a promotion list when his medical condition resulted in a finding of unfit by the PDES.   By law, Soldiers who are on a promotion list at the time of retirement for disability are retired for disability at the promotion list grade.  Further, the Soldier is promoted to the designated grade effective the day before placement on the retired list.  

2.  Therefore, it would be appropriate and serve the interest of justice and equity to correct the applicant’s retirement orders to show that he was placed on the Retired List in the rank/grade of MSG/E-8 on 26 January 2007 and by providing him any back retired pay due as a result.

BOARD VOTE:

__tsk___  __jlp___  __dwt___  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:

	a.  amending Headquarters, United States Army Garrison, Fort Carson, Colorado, Orders 018-0016, dated 18 January 2007, to show the applicant's retired grade of rank as "MSG" instead of "SFC," and

	b.  payment of back pay and allowances based on the corrected retired grade of rank.



							TSK
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000896



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
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