BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100012363 


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 promotion to staff sergeant (SSG)/E-6 in the Army National Guard (ARNG).

2.  The applicant states he was denied promotion to SSG/E-6 while he was in the Warrior Transition Unit (WTU).  He was told he would have to wait until he returned to his unit in order to get promoted.  He has held the rank/grade of sergeant (SGT)/E-5 since 1981 and although he had a few breaks in service, he never lost any stripes.  He was assigned to the WTU and ultimately retired by reason of disability.  He would like to have his promotion to SSG/E-6.

3.  The applicant provides a copy of a Promotion Standing List.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army and the ARNG, the applicant's records show he enlisted in the Missouri Army National Guard (MOARNG) as an SGT/E-5 on 7 April 2005.  He held military occupational specialty (MOS) 21B (Combat Engineer).

2.  His records also show he was ordered to active duty on 5 August 2005 and he subsequently served in Iraq from on or about 1 December 2005 to on or about 5 November 2006.  He was assigned to the 110th Engineer Battalion, MOARNG.

3.  On 1 February 2007, he was reassigned to the Joint Forces Headquarters, MOARNG, Jefferson City, MO.  Additionally, it appears at some time he was placed on the Promotion Standing List for promotion to SSG/E-6. 

4.  He was honorably released from active duty on 31 January 2008 to the control of his ARNG unit.  He was assigned to the 110th Engineer Battalion. The orders releasing him from active duty listed his rank/grade as a SGT/E-5.

5.  On 1 February 2008, he was ordered to active duty in the rank/grade of SGT/E-5 and he was assigned to the WTU, Fort Leonard Wood, MO, for completion of medical care and treatment.  His records were subsequently considered by a medical evaluation board (MEB) that referred him to a physical evaluation board (PEB). 

6.  On 3 November 2008, an informal PEB convened at Fort Lewis, WA, and determined he had an unfitting medical condition.  The PEB recommended placing him on the temporary disability retirement list (TDRL) with reexamination in August 2009.  He concurred.

7.  He was honorably retired on 18 December 2008 by reason of temporary disability.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank/grade at the time of retirement as SGT/E-5.

8.  On 2 February 2010, a TDRL PEB convened and determined his condition had not improved to the extent that he was fit for duty.  The TDRL PEB recommended his permanent retirement.  He concurred.

9.  On 17 February 2010, he was removed from the TDRL and he was subsequently retired by reason of permanent disability.  His retirement orders listed his rank/grade as a SGT/E-5.

10.  There is no indication in his records that he was promoted to SSG/E-6 prior to his retirement. 

11.  In the processing of this case, on 25 October 2010, an advisory opinion was obtained from National Guard Bureau recommending disapproval.  The advisory official acknowledged that the applicant was on the 2008 Enlisted Promotion List. He was ranked 18th on that list and 1st in the Joplin, MO, area; however, there were no positions available in his career field to promote him.  All Soldiers must be promoted against a valid vacancy.  He was not passed over for promotion for being in the WTU as such participation is not a bar to promotion.  On 25 October 2010, the applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 7 covers enlisted promotions and reductions of ARNG Soldiers.  Paragraph 7-40a states Soldiers will be offered assignment to available vacancies for which they are eligible and available starting with the lowest promotion sequence number (having the most points) within each MOS and continuing until the selection objective is exhausted, all vacancies are filled, or the list expires.  Traditional (M-day) Soldiers compete for vacancies with other
M-day Soldiers.  If Soldiers are eligible and available for the assignment, they will be assigned and promoted provided they have met all other requirements for the promotion.  States will establish procedures to contact and solicit individual responses (acceptance or declination) only from eligible and available Soldiers who have selected an option to serve at a unit or location or within an area or distance, including allowable response times (and the consequences of failure to respond). 

13.  Paragraph 1-20 of this regulation states Soldiers who are pending referral to an MOS/medical retention board (MMRB) under Army Regulation 600–60 or referral to a physical evaluation board under Army Regulation 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.  Soldiers who have been conditionally promoted but are unable to meet the condition of their promotion solely because of a medical condition that results in a finding of unfit by the Physical Disability Evaluation System (PDES) will not be subject to administrative reduction if otherwise qualified to retain promotable status.  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.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows the applicant was placed on the 2008 Promotion Standing List and he was assigned a sequence number of 18 overall and a sequence number of 1 in the Joplin, MO, area.  However, it appears that there were no vacancies for his MOS in the Joplin area to promote him.  By regulation, he had to have a valid vacancy in order to get promoted.

2.  Nevertheless, by law and regulation, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Furthermore, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.  

3.  Notwithstanding the advisory opinion provided by the NGB, the applicant is entitled to promotion to SSG/E-6, effective one day prior to his retirement for disability and retroactive pay and allowances 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 the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by:

* issuing him official orders promoting him to the rank/grade of SSG/E-6 with an effective date and date of rank as 17 December 2008
* amending his DD Form 214 to show his rank, grade, and date of rank as SSG, E-6, and 17 December 2006 respectively
* amending his permanent retirement orders, dated 17 February 2010, to show he retired in the rank/grade of SSG/E-6
* paying the applicant all back pay and allowances due as a result of these corrections



      __________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)                                         AR20100012363



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ABCMR Record of Proceedings (cont)                                         AR20100012363



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