IN THE CASE OF:
BOARD DATE: 8 September 2010
DOCKET NUMBER: AR20100008843
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 records to show he was promoted to sergeant (SGT)/E-5.
2. The applicant states he had been selected for promotion.
3. The applicant provides a copy of DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 31 August 2009, in support of his application.
CONSIDERATION OF EVIDENCE:
1. After having prior active and inactive service, the applicant enlisted in the Alabama Army National Guard on 14 July 2006. He was promoted to specialist (SPC)/E-4 on 14 July 2006.
2. On 7 June 2007, he was ordered to active duty in support of Operation Iraqi Freedom and he served in Iraq from 15 October 2007 to 15 March 2008.
3. On 31 August 2009, he underwent an informal PEB which determined that his right dominant hand weakness and anxiety disorder rendered him unfit for continued military service. The PEB recommended his placement on the Temporary Disability Retired List (TDRL) with reexamination during February 2011. He was given a combined disability rating of 50 percent.
4. The applicant's 31 August 2009 PEB proceedings were administratively correct to show he had been selected for promotion to SGT/E-5 and was entitled to be retired at that grade per Title 10, section 1372, as amended by Public Law 104-201, section 577, dated 23 September 1996.
5. The applicant was released from active duty on 23 October 2009 by reason of temporary physical disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank and pay grade as SPC/E-4.
6. On 24 October 2009, the applicant was discharged from the Army National Guard and placed on the TDRL. Orders placing the applicant on the TDRL are not available.
7. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows his rank and pay grade as SPC/E-4.
8. Title 10, U.S. Code, section 1372, states that 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 TDRL under section 1202 or 1205 of this title, 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, if his name was not carried on that list, on the date when 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.
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.
9. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. In pertinent part, it directs that the grade in which enlisted personnel were serving at the time of separation will be entered in item 4a and the pay grade will be entered in item 4b.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he had been selected for promotion is acknowledged. However, the evidence of record does not indicate that an error or injustice exists in this case.
2. The evidence of record shows the applicant's 31 August 2009 PEB proceedings were administratively corrected to show he had been selected for promotion to SGT/E-5 and was entitled to be retired in that grade.
3. The applicant was released from active duty on 23 October 2009 and placed on the TDRL. His DD Form 214 shows he was released from active duty in the rank of SPC/E-4. Based on the governing regulation, the applicant's DD Form 214 is meant to reflect his status as of his last day of active duty on 23 October 2009. As of that date, he was an SPC/E-4. Therefore, his DD Form 214 accurately reflects his rank as SPC/E-4.
4. By law, the applicant should have been placed on the TDRL in the rank of SGT/E-5. However, the orders placing him on the TDRL are not available.
5. Since there is no document to be corrected in this case, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
____________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) AR20100008843
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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