IN THE CASE OF:
BOARD DATE: 30 OCTOBER 2008
DOCKET NUMBER: AR20080014511
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 or Release or Discharge from Active Duty) be corrected to show he was promoted to sergeant (SGT)/E-5 and that his record be corrected to show he was retired in the rank and grade of SGT/E-5.
2. The applicant states that he signed his DD Form 214 prior to his promotion date of 15 February 2008. He took terminal leave beginning in January 2008 and was not available for signing his DD Form 214.
3. The applicant provides a copy of his promotion orders to SGT/E-5.
CONSIDERATION OF EVIDENCE:
1. The applicant served in the Regular Army from 31 December 2003 through 15 February 2008. He was retired under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation),
chapter 4-24b(1), by reason of disability, permanent.
2. On 14 February 2008, the applicant underwent a Physical Disability Evaluation (PEB) board and was found physically unfit, rated as 30 percent disabled. He was recommended for permanent disability retirement. On 14 February 2008, the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., corrected his PEB proceedings to reflect that his disability rating was increased to 40 percent.
3. Orders 332-001, Department of the Army, U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, North Carolina, dated 28 November 2007, promoted the applicant to the rank and grade of SGT/E-5, effective 15 February 2008.
4. On 16 February 2008, the applicant was placed on the retired list. Orders 325-0269, Department of the Army, Headquarters, U.S. Army Garrison, Fort Bragg, North Carolina, dated 21 November 2007, show that he was placed on the retired list in the rank and grade of specialist/E-4. His DD Form 214 shows that he was a specialist/E-4 when he retired.
5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20a, states that Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board or referral to a Medical Evaluation Board or a PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. 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 or 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 Temporary Disability Retired List (TDRL) is entitled to the grade equivalent to the highest of the following:
a. 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;
b. 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;
c. 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
d. 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:
The evidence shows that the applicant was on a promotion list prior to his retirement from active duty on 15 February 2008 and placement on the retired list on 16 February 2008. The applicant's unit issued promotion orders on
28 November 2007 promoting him to SGT/E-5 effective 15 February 2008 per regulatory and statutory guidance.
2. The applicant's records should be corrected to show he was promoted to SGT/E-5, effective 15 February 2008, and that he was placed on the retired list in the rank and grade of SGT/E-5 effective 16 February 2008.
3. The applicant's records should also be corrected to show that his disability percentage was increased to 40 percent by the USAPDA.
BOARD VOTE:
___X_____ ___X_____ __X______ GRANT FULL RELIEF
________ ________ ________ 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. amending Orders 325-0269, Department of the Army, Headquarters, U.S. Army Garrison, Fort Bragg, North Carolina, dated 21 November 2007, to show the applicant was placed on the retirement list in the grade and rank of SGT/E-5 and that his percentage of disability was 40 percent; and
b. correct the applicant's DD Form 214 to show his grade was SGT/E-5 at the time of his retirement.
2. The applicant's retirement account should be audited by the Defense Finance and Accounting Service to ensure he is receiving retired pay in the rank and grade of SGT/E-5, and as 40 percent disabled. He should be paid any back pay and allowances if entitled.
__________XXX_______________
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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