BOARD DATE: 19 November 2009
DOCKET NUMBER: AR20090007644
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 the orders placing her on the Temporary Disability Retired List (TDRL) and her 2008 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that she was placed on the TDRL and discharged from active duty in the rank of sergeant in pay grade E-5.
2. The applicant states the documents in question do not reflect her correct rank. She notes that she has been trying to resolve this since June 2008 but has not had any successful guidance.
3. The applicant provides copies of her TDRL orders, her 2008 DD Form 214, her promotion orders, and her 2009 Army National Guard retirement orders.
CONSIDERATION OF EVIDENCE:
1. Records available to the Board indicate the applicant enlisted in the Army National Guard on 16 April 2003. By October 2005 she had been promoted to the rank of specialist/E-4.
2. On 21 April 2006 she was ordered to active duty in support of Operation Enduring Freedom and, according to an entry on her 2008 DD Form 214, served in Afghanistan between October 2006 and March 2007.
3. As a result of an eating disorder, the applicant was medically evacuated from overseas via Germany to Eisenhower Army Medical Center at Fort Gordon, Georgia, where she was assigned to the Warrior Transition Unit. On 13 March 2008 she underwent an informal physical evaluation board (PEB) where it was determined that her eating disorder rendered her unfit for continued military service but was not sufficiently stable for final adjudication. The PEB recommended placement on the TDRL. The applicant concurred and the PEB proceedings were approved on 17 April 2008.
4. On 25 April 2008 Headquarters, U.S. Army Garrison, Orders 116-0909 were issued at Fort Gordon, Georgia, retiring the applicant from active duty by reason of physical disability with a retirement date of 30 May 2008 and placement on the TDRL effective 31 May 2008 in the grade of SPC [specialist].
5. On 17 May 2008 orders were issued by the Maryland Army National Guard promoting the applicant to the rank of sergeant/E-5 effective 30 April 2008.
6. On 30 May 2008 the applicant was retired. Item 4a (Grade, Rate, or Rank) of her DD Form 214 reflects SPC, item 4b (Pay Grade) reflects E04, and item 12h (Effective Date of Pay Grade) reflects 20051001.
7. Orders discharging her from the Army National Guard issued on 19 February 2009 with an effective date of 31 May 2008 reflect her rank as SGT [sergeant].
8. In the processing of this case an advisory opinion was issued by the National Guard Bureau. The opinion recommended the applicants request be approved, that her DD Form 214 be corrected, and that Orders 116-0909 be amended to state her retirement rank as SGT. The opinion cited the provisions of Title 10, U.S. Code, section 1372, as the basis for supporting the applicants request.
9. Title 10, U.S. Code, section 1372, states:
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.
(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.
9. The applicant was provided an opportunity to comment on the advisory opinion but no response was received.
DISCUSSION AND CONCLUSIONS:
The evidence confirms the applicant was promoted by the Army National Guard effective 30 April 2008, 30 days prior to her retirement by reason of physical disability and subsequent placement on the TDRL. Under the provisions of Title 10, U.S. Code, section 1372, she was entitled to be separated in the grade she held on the date her name was placed on the TDRL. As such, she is entitled to have her 2008 DD Form 214 corrected and the orders effecting her retirement amended accordingly.
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:
a. amending items 4a, 4b, and 12h of her 30 May 2008 DD Form 214 to reflect SGT, E05, and 20080430, respectively; and
b. amending Headquarters, U.S. Army Garrison, Orders 116-0909, dated 25 April 2008, to show her retired grade of rank as SGT vice SPC.
__________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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