IN THE CASE OF:
BOARD DATE: 15 May 2008
DOCKET NUMBER: AR20080002798
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 31 August 2007 and his retirement orders be corrected to show the rank of Sergeant (SGT)/E-5. He also requests all promotion back pay and allowances effective 30 August 2007.
2. The applicant states, in effect, that the active Army was not aware of his promotion by the Army National Guard prior to his retirement.
3. The applicant provides his DD Form 214; Headquarters, 1st Infantry Division and Fort Riley Orders 228-0002, dated 16 August 2007; and Land Component, Joint Headquarters Kansas Orders 311-728, dated 7 November 2007.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Army National Guard (ARNG) on 9 April
2004 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11B (Infantryman).
2. Headquarters, 1st Infantry Division and Fort Riley Orders 228-0002, dated
16 August 2007, show the applicant was placed on the retired list on
1 September 2007. His retired grade of rank shows the entry "SPC."
3. On 31 August 2007, the applicant was retired due to permanent physical disability. His DD Form 214 with the ending period 31 August 2007 shows the entry of "SPC" in item 4a (Grade, Rate or Rank), the entry of "E04" in item 4a (Pay Grade), and the entry "2005" year(s), "07" month(s), and "15" day(s) in item 12h (Effective Date of Pay Grade).
4. Land Component, Joint Headquarters Kansas Orders 311-728, dated
7 November 2007, show that the applicant was promoted to the rank and grade of SGT/E-5 effective 30 August 2007.
5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20c states 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.
6. Title 10, U. S. Code, section 1372 states any member of an armed force who is retired for physical disability or whose name is placed on the TDRL 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 TDRL or the date 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.
DISCUSSION AND CONCLUSIONS:
Land Component, Joint Headquarters Kansas Orders 311-728, dated
7 November 2007, show the applicant was promoted to the rank/pay grade of
SGT/E-5 effective 30 August 2007, prior to his separation. Therefore, his DD
Form 214 with the ending period 30 August 2007 and Headquarters, 1st Infantry Division and Fort Riley Orders 228-0002, dated 16 August 2007 should be amended to show his rank/pay grade as SGT/E-5 effective 30 August 2007, with entitlement to back pay and allowances.
BOARD VOTE:
___XX___ __XX____ __XX___ 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. deleting the entry in item 4a of his DD Form 214;
b. amending his DD Form 214 in item 4a to add "SGT";
c. deleting the entry in item 4b of his DD Form 214;
d. amending his DD Form 214 in item 4b to add "E-5";
e. deleting the entry in item 12h "2005" year(s), "07" month(s), and "15" day(s) of his DD Form 214;
f. amending his DD Form 214 in item 12h to add "2007" year(s), "08" month(s), and "30" day(s);
g. amending his Headquarters, 1st Infantry Division and Fort Riley Orders 228-0002, dated 16 August 2007 to read Retired grade of rank: "SGT"; and
h. paying him any back pay and allowances due as a result of these corrections.
_________XX____________
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.
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