IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090010454 


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 correction of his rank to show he was retired in the rank of sergeant first class (SFC), pay grade E-7 instead of staff sergeant (SSG), pay grade E-6.

2.  The applicant states he was placed on the SFC/E-7 promotion list prior to placement on the Temporary Disability Retirement List (TDRL) on 19 July 2003.  According to Army Regulation 600-8-19 (Enlisted Promotions), section 1-20c, he believes he should have been promoted on 18 July 2003.  He further states he was advised he should have been promoted in 2003, one day prior to being placed on the TDRL.

3.  In support of his application, the applicant provides copies of his TDRL orders, his promotion orders, and Army Regulation 600-8-19, section 1-20.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show the enlisted in the Regular Army on 
3 January 1995, with prior enlisted service.  

3.  Orders 120-0171, dated 30 April 2003, were published assigning the applicant to the TDRL with a scheduled date of separation of 18 July 2003.  He was honorably retired in the rank/grade of SSG/E-6 on 18 July 2003, for physical disability and placed on the TDRL the following day.  

4.  Orders Number 190-50, dated 9 July 2003, were published showing the applicant’s promotion to SFC/E-7, with a date of rank and effective date of 1 August 2003.  The order stated that the promotion was not valid and would be revoked if the Soldier concerned was not in a promotable status on the effective date of promotion and promotion acceptance constituted acceptance of the 
2-year service remaining requirement from the effective date of promotion.

5.  On 8 August 2008, a formal Physical Evaluation Board (PEB) convened and considered the applicant's disability of multiple sclerosis.  The PEB stated the applicant was placed on the TDRL in 2003 as an analogous diagnosis of multiple sclerosis.  The PEB determined that the present PEB rating of 70 percent accurately reflected the current degree of severity of his condition.  The PEB found that the applicant had stabilized sufficiently for rating purposes and recommended permanent retirement with a combined rating of 70 percent.  On 22 August 2008, the applicant concurred with findings and recommendations of the PEB.

6.  On 10 September 2008, the U.S. Army Physical Disability Agency published orders permanently retiring the applicant in the rank/grade of SSG/E-6.

7.  Army Regulation 600-8-19, paragraph 1-20a specifies that Soldiers pending referral to a Medical Evaluation Board (MEB) or 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 specifies 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.  The Soldier will be promoted to the designated grade effective the day before placement on the retired list.  


8.  Title 10, U.S. Code, section 1372, specifies any member of the Armed Forces 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 in which he is serving on the date when his name was placed on the TDRL or on the date when retired, or (2) the highest temporary grade in which he served satisfactorily, (3) the permanent regular grade to which he would have been promoted had it not been for the physical disability for which he is retired, (4) the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in March 2003 it was determined the applicant’s medical condition prevented satisfactory performance of duty in his grade and specialty and he was placed on the TDRL as an SSG/E-6.

2.  The applicant was in a promotable status on 18 July 2003 when he was retired and placed on the TDRL.

3.  Title 10, U.S. Code, section 1372, specifies any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the permanent regular grade to which he would have been promoted had it not been for the physical disability for which he is retired.

4.  Army Regulation 600-8-19, paragraph 1-20a specifies that Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted to the designated grade effective the day before placement on the retired list.  Therefore, the applicant is entitled to correction to his record to show he was promoted to SFC/E-7 with a date of rank and effective date of 18 July 2003 and retroactive payment of all pay and allowances due as a result of this correction.

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.  promoting him to the retired rank/pay grade of sergeant first class/E-7 with a date of rank and effective date of 18 July 2003; and

	b.  paying him all pay and allowances due as a result of this correction.



      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20090017342



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ABCMR Record of Proceedings (cont)                                         AR20090010454



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