BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090021885 


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 his grade as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 21 September 2004, his orders to the Temporary Disability Retired List (TDRL), and his permanent retirement orders be changed to sergeant first class (SFC)/pay grade E-7 instead of staff sergeant (SSG)/pay grade E-6.

2.  The applicant states he was on the SFC promotion list when it was determined he would be placed on the TDRL.  He states he was placed on the TDRL as an SFC, but issued a DD Form 214 and TDRL orders with SSG as the rank.

3.  The applicant provides copies of:

* U.S. Army Human Resources Command (HRC) Order Number 103-24, dated 12 April 2004
* HRC Order Number 120-2, dated 29 April 2004
* DD Form 214
* Headquarters, Defense Language Institute Foreign Language Center, Orders 190-0002, dated 8 July 2004, placing him on the TDRL
* HRC letter, dated 19 December 2006, to his Congressional representative
* U.S. Army Physical Evaluation Board Orders D286-34, dated 13 October 2009, removing him from the TDRL and placing him on the Retired List


CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 8 October 1993 for a period of 5 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 97E (Interrogator).  He served continuously until the date he was placed on the TDRL.

2.  HRC Order Number 103-24, dated 12 April 2004, promoted the applicant to sergeant first class in MOS 97E with an effective date of 1 May 2004.

3.  HRC Order Number 120-2, dated 29 April 2004, revoked that portion of HRC Order Number 103-24, dated 12 April 2004, pertaining to promotion of the applicant.

4.  The applicant's proceedings for processing under the Physical Disability Evaluation System are not available for review.  However, a physical evaluation board determined at some point the applicant was physically unfit for duty and that he should be placed on the TDRL.

5.  Headquarters, Defense Language Institute Foreign Language Center, Orders 190-0002, dated 8 July 2004, released the applicant from assignment and duty and placed him on the TDRL with an effective date of retirement of 21 September 2004.  These orders show his retirement grade as SSG and his permanent grade as SFC.  The statue shown as authorizing retirement is Title 10, U.S. Code, section 1202.

6.  The applicant was retired on 21 September 2004 and placed on the TDRL on 22 September 2004.  His DD Form 214 shows his retirement grade as SSG.  His orders placing him on the TDRL show his retirement grade as SSG and his permanent grade as SFC.

7.  A letter, dated 19 December 2006, from the Chief, Promotions Branch, HRC, to the applicant's Congressional representative states that at the time Soldiers on a promotion selection list undergoing a medical evaluation proceeding to determine their ability to perform in the recommended MOS would be placed in a non-promotable status until a determination was made by the medical authorities.  If the decision was retirement or separation, the Soldier would be considered for placement on the retirement list or receive separation pay based on his promotion selection list grade.

8.  HRC stated the applicant's promotion status was changed to "non-promotable" based on the medical proceedings and his promotion could not be executed prior to him leaving the Army.  However, when it was determined he would be placed on the TDRL, it was also determined he would be placed on the TDRL based on the promotion selection list grade and be paid retirement pay in the grade of SFC.

9.  U.S. Army Physical Evaluation Board Orders D286-34, dated 13 October 2009, removed the applicant from the TDRL on 21 September 2009 and stated he was permanently retired in his current grade based on permanent disability.  These orders identify the applicant as an SSG in the standard name line.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated in paragraph 1-10 that Soldiers (specialist - master sergeant) are non-promotable to a higher grade if they are undergoing medical evaluation proceedings to determine ability to perform in their recommended MOS.

11.  Title 10, U.S. Code, section 1372, states any member of an armed force whose name is placed on the TDRL under section 1202 or 1205 of this title is entitled to 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214, orders placing him on the TDRL, and his permanent retirement orders should show him as an SFC instead of a SSG.

2.  The applicant was on the promotion list to SFC, dated 12 April 2004.  However, his promotion was withheld because the pending medical proceedings placed him in a non-promotable status.

3.  The applicant was retired in the grade of SSG because he was non-promotable.  Therefore, the grade of SSG on his DD Form 214 is correct.

4.  In accordance with Title 10, U.S. Code, section 1372, the applicant was placed on the TDRL in the grade of SFC.  He had been selected for promotion to SFC and would have been promoted to that grade if he had remained on active duty.  His orders placing him on the TDRL show his retirement grade as SSG and his permanent grade as SFC.  Therefore, his orders placing him on the TDRL are correct.

5.  The applicant's orders removing him from the TDRL state he is permanently retired in his current grade of rank.  However, these orders identify him as an SSG.  Because he was placed on the TDRL as an SFC, his current rank was SFC at the time of the issuance of these orders.  Therefore, his orders removing him from the TDRL should identify him as an SFC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x____  ____x__  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending U.S. Army Physical Evaluation Board Orders D286-34, dated 13 October 2009, to identify him as an SFC instead of SSG.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his DD Form 214 and orders placing him on the TDRL.



      __________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)                                         AR20090021885



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ABCMR Record of Proceedings (cont)                                         AR20090021885



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