IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100013524 


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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 15 July 2010 to show his highest enlisted grade.

2.  The applicant states he was retired on 15 July 2010 and placed on the temporary disability retirement list (TDRL) in the grade of staff sergeant (SSG)/pay grade E-6.  He states the highest enlisted rank/grade he held was sergeant first class (SFC)/E-7, which he held for more than 6 months in the Regular Army.

3.  He continued by stating that he researched Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 3-3 (Physical Disability), that states his disability retirement packet should have gone to the Army Grade Determination Review Board (AGDRB) to determine his highest enlisted grade satisfactorily held before he was separated and issued his DD Form 214.

4.  The applicant provides the following documentary evidence:

	a.  Orders 089-0901 issued by U.S. Army Installation Management Command, Fort Gordon, GA on 30 March 2010;

	b.  DD Form 214 with a separation date of 15 July 2010;


	c.  DD Form 214 with a separation date of 18 August 1999;

	d.  an excerpt from Army Regulation 135-180, paragraph 2-11 (Computation of Retired Pay);

	e.  an excerpt from Army Regulation 600-8-19, paragraph 7-8 (Service Remaining Obligation);

	f.  an excerpt from Army Regulation 15-80, paragraph 3-3;

	g.  excerpts from the Fort Gordon manual for the physical disability evaluation system (PDES); and

	h.  an Ombudsman (Soldier and Family Advocate) for U.S. Army Medical Command inquiry to the Retirement Services Officer at Fort Gordon.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army, the applicant reenlisted in the Regular Army on 3 March 1988 in military occupational specialty 95B (Military Police).  He served continuously on active duty until he was honorably discharge on 18 August 1999.  He was issued a DD Form 214 that shows in:

	a.  item 4a (Grade, Rate or Rank) the entry "SFC" (Sergeant First Class)

	b.  item 4b (Pay Grade) the entry "E7";

	c.  item 12h (Effective Date of Pay Grade) the entry "1999  02  01"
(1 February 1999);

	d.  item 25 (Separation Authority) the entry "AR (Army Regulation) 635-40, paragraph 4-24B(3)";

	e.  item 27 (Reentry Code) the entry "3"; and

	f.  item 28 (Narrative Reason for Separation) the entry "DISABILITY, SEVERANCE PAY."

2.  The applicant received a medical waiver from the Chief, Surgeon, National Guard Bureau (NGB), on 14 May 2007 for his history of low back pain and a lipid disorder.  

3.  On 17 May 2007, he enlisted in the North Carolina Army National Guard (NCARNG) for a 6-year period of service in the rank/grade of sergeant (SGT)/
E-5.

4.  On 2 June 2008, he was ordered to active duty in support of contingency operations for active duty operational support (CO-ADOS) for 180 days with duty in Iraq.

5.  On 26 November 2008, he was retained on active duty to participate in the Reserve Component Warriors in Transition medical retention processing program for completion of medical care and treatment.

6.  On 1 February 2009, he was promoted to the rank/grade of staff sergeant (SSG)/grade E-6 by Orders 033-804, issued by the State of North Carolina, Joint Forces Headquarters, Raleigh, NC, dated 2 February 2009.

7.  On 4 March 2010, a physical evaluation board (PEB) found the applicant unfit for duty due to an anxiety disorder, not otherwise specified with co-morbid major depressive disorder following his Iraq deployment where he was awarded the Purple Heart and Combat Action Badge.  His condition was rated 50 percent (%) disabling.  He was also rated for residuals of traumatic brain injury, not otherwise classified based on an improvised explosive device injury in 2008.  For this condition, he was rated 40% disabled.  His overall combined disability rating for these two unfitting conditions was 70%.  As his physical condition was unfitting, the PEB recommended medical retirement with transfer to the TDRL.

8.  On 9 March 2010, the applicant concurred with the aforementioned findings and waived a formal hearing.

9.  On 17 March 2010, the appropriate approval authority at the U.S. Army Physical Disability Agency approved the PEB findings and recommendations.

10.  Orders Number 089-0901, published by Headquarters, U.S. Army Garrison, Fort Gordon, on 30 March 2010 retired the applicant effective 15 July 2010 and placed him on the TDRL effective 16 July 2010 in the rank/grade of SSG/E-6.

11.  Accordingly, he was issued a DD Form 214 showing he entered active duty on 19 June 2007 and he was honorably retired on 15 July 2010.  His DD Form 214 for this period of service shows in:

	a.  item 4a (Grade, Rate or Rank) the entry "SSG";

	b.  item 4b (Pay Grade) the entry "E6";
	c.  item 12i (Effective Date of Pay Grade) the entry "2007  05  17" (17 May 2007);

	d.  item 18 (Remarks) the entry "DISCHARGED FROM ENLISTED STATUS IN THE RETIRED GRADE SSG."

12.  References:

	a.  Title 10, U.S. Code, section 1372 defines the grade upon retirement for physical disability or whose name is placed on the TDRL for members of Armed Forces.  The member 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 TDRL;
    
   	(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; or 
   
   	(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. 
   
	b.  Army Regulation 635-5 (Separation Documents), effective 30 September 2000, provided that a DD Form 214 must be prepared for all Soldiers at the time of their retirement, discharge, or release from active duty service or control of the Active Army.  This regulation establishes the standardization policy for preparing and distributing the DD Form 214 to include the use of proper source documents in the preparation of the DD Form 214.  The source documents include the Soldier's enlisted record brief, separation approval authority documentation, separation order, and any other document authorized for filing in the Soldier's official military personnel file.  Further guidance provides that the Soldier's grade, 


rate or rank will be the active duty grade or rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  As an operation of law, the applicant is entitled to a correction of his retirement orders to show he was placed on the TDRL in the retired grade of rank of SFC based on the highest rank he satisfactorily held.

2.  The applicant held the rank/grade of SSG/E-6 at the time of his retirement based on temporary disability.  The governing regulation for the preparation of the DD Form 214 states the Soldier's grade, rate or rank will be the active duty grade or rank and pay grade at time of separation.  Therefore, there is no basis for changing the rank/grade (items 4a and 4b) on his DD Form 214 for the period ending 15 July 2010.

3.  However, item 18 of the applicant's DD Form 214 contains the entry "DISCHARGED FROM ENLISTED STATUS IN THE RETIRED GRADE SSG."
It should read, "DISCHARGED FROM ENLISTED STATUS IN THE RETIRED GRADE 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 by corrected by amending Orders Number 089-0901 to show his retired grade of rank as SFC and amending item 18 of his DD Form 214 to read, "DISCHARGED FROM ENLISTED STATUS IN THE RETIRED GRADE SFC."

2.  The Board further determined 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 correcting the applicant's DD Form 214 (items 4a and 4b) for the period ending 15 July 2010 to show his rank/grade as SFC/E-7.



      ___________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)                                         AR20100013524



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013524



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1