IN THE CASE OF:
BOARD DATE: 7 August 2008
DOCKET NUMBER: AR20080008295
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, in effect, that he be paid severance pay in the rank and pay grade of staff sergeant (SSG/E-6) instead of sergeant (SGT/E-5).
2. The applicant states, in effect, that his final rank on his DD Form 214 (Certificate of Release or Discharge from Active Duty) has been corrected to show E-6. His date of rank for SSG/E-6 is 1 January 2004. He requested that this be noted on his service record and he requested back pay for his final year in service. His brigade commander agreed to set aside his rank reduction on his final day of active duty. He did not receive the order until a couple of months after his discharge. Now that he has received his DD Form 215 (Correction to DD Form 214), he would like his back pay reinstated.
3. The applicant provides a copy of his reduction orders, a copy of his amendment to his reduction orders, a copy of his DD Form 214, and a copy of his DD Form 215 in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he enlisted in the Washington Army National Guard (WAARNG) on 31 December 2001, with prior service in the United States Marine Corps, in pay grade E-5, for 6 years, with an established expiration term of service (ETS) of 3 December 2007. He was trained as a Common Ground Station Operator, in military occupational specialty (MOS), 96H.
2. On 11 April 2002, the applicant was approved for an interstate transfer from WAARNG to the Colorado ARNG (COARNG).
3. The applicant was promoted to SSG/E-6 with an effective date of 23 January 2004 and a date of rank (DOR) of 1 January 2004.
4. The applicant was ordered to active duty on 1 April 2006 in support of Operation Iraqi Freedom (OIF).
5. The applicant was reduced from SSG/E-6 to SGT/E-5 with a DOR and effective date of 11 July 2006, for misconduct. Documentation regarding his misconduct is unavailable for review by the Board.
6. The applicants medical records, medical evaluation board (MEB), and physical evaluation board (PEB) are unavailable for review by this Board.
7. The applicant was honorably discharged on 12 July 2007, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay, in the pay grade of E-5. He completed 1 year, 3 months, and 12 days of net active service for this period of service and completed 7 years, 5 months, and 1 day of total prior active serve for a combined total of 8 years, 8 months, and 13 days of total active service. Item 18 (Remarks) of his DD Form 214 states that he was paid severance pay in the amount of $54,934.20.
8. On 13 July 2007, the applicant was honorably discharged in the rank and pay grade of E-5 from the COARNG for being medically unfit for retention in the rank and pay grade of E-5.
9. On 2 August 2007, orders were published revoking his reduction orders.
10. The applicant provided a copy of his DD Form 215, dated 17 April 2008, which was prepared by the ARNG, to correct item 4a (Grade, Rate, or Rank) to show the entry "SSG," item 4b (Pay Grade) to show the entry "E06," and item 12h (Effective Date of Pay Grade) to show the entry "2004 01 23" (23 January 2004).
11. Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA). It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army
Physical Disability Agency (USADPA) for clarification or reconsiderations when
newly discovered evidence becomes available and is not reflected in the findings and recommendations. Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant was promoted to SSG/E-6 with an effective date of 23 January 2004 and DOR of 1 January 2004. He was reduced from SSG/E-6 to SGT/E-5 with an effective date and DOR of 11 July 2006, for misconduct.
2. The applicant was honorably discharged on 12 July 2007, under the provisions of Army Regulation 635-40, chapter 4, paragraph 4-24b(3), for disability, with severance pay, in the pay grade of E-5. He was paid severance pay in the amount of $54,934.20 based on his rank and pay grade of SGT/E-5.
3. Orders were published revoking his reduction orders and reinstating the applicant to the rank and pay grade of SSG/E-6. A DD Form 215 was issued by the ARNG to correct his DD Form 214 to show his rank and pay grade as SSG/E-6 and to correct his effective date of pay grade. Based on this correction, the applicant is entitled to be paid severance pay in the pay grade of E-6 based on his total active service.
4. In the interest of justice and equity it would now be appropriate to grant the applicant full relief and correct his records as recommended below.
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
correcting his records to show that he is entitled to receive severance pay in the pay grade of E-6 and the difference in pay between pay grades E-5 and E-6 from 11 July 2006 to 12 July 2007, the date of his reduction to the date of his separation from service, based on his total active service, as computed by the Defense Finance and Accounting Service (DFAS).
____________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.
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