IN THE CASE OF:	  

		BOARD DATE:	    18 January 2011

		DOCKET NUMBER:  AR20100015375 


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 permanently retired by reason of physical disability in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  The applicant states he was a member of the Warrior Transition Unit (WTU) at Fort Jackson, SC, and Fort Gordon, GA, from 1 September 2007 to 30 July 2009. He was promoted to SSG/E-6 on 30 July 2009 and placed on the Temporary Disability Retired List (TDRL) on the same date.

3.  The applicant provides:

* Permanent Orders 090-001 (transfer to Retired Reserve)
* Orders 117-801 (promotion orders)
* Orders 196-832 and Orders 091-800 (amendment of promotion orders)

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Regular Army and the Army National Guard (ARNG), the applicant enlisted in the South Carolina ARNG in the rank/grade of specialist/E-4 on 30 March 2001.  He held military occupational specialty (MOS) 92A (Automated Logistical Specialist).

2.  His records show he served in Kuwait/Iraq from 10 June 2003 to 18 April 2004 and he was promoted to SGT/E-5 on 1 August 2006.  His records also show he executed a 2-year extension in the South Carolina ARNG on 28 March 2007 and a 1-year extension on 24 March 2009.

3.  He was ordered to active duty in support of Operation Enduring Freedom on 29 January 2007 and subsequently served in Afghanistan from 2 June 2007 to 1 September 2007.  He was assigned to Company B, 151st Signal Battalion.

4.  On 22 February 2008, the applicant was involved in a vehicle accident that ultimately led to his assignment to a WTU and entry into the Physical Disability Evaluation System (PDES).  He underwent a medical evaluation board that recommended his referral to a physical evaluation board (PEB).  A PEB convened at Fort Sam Houston, TX, on 24 March 2009 and determined he had an unfitting medical condition.  The PEB recommended placing him on the TDRL with reexamination in November 2009.  He concurred.

5.  On 31 March 2009, the South Carolina ARNG published Permanent Orders 090-001 releasing him from his active ARNG assignment effective 30 July 2009 and placing him on the State Retired List in the rank/grade of SSG/E-6 effective 31 July 2009. 

6.  On 9 April 2009, Headquarters, U.S. Army Garrison, Fort Gordon, published Orders 099-0903, releasing him from active duty effective 29 June 2009 and placing him on the Retired List in the rank/grade of SGT/E-5 effective 30 June 2009.

7.  On 17 April 2009, Headquarters, U.S. Army Garrison, Fort Gordon, published Orders 107-0900 amending Orders 099-0903 to show the effective date of retirement as 30 July 2009.

8.  On 27 April 2009, the South Carolina ARNG published Orders 117-801 promoting the applicant to the rank/grade of SSG/E-6 with an effective date and date of rank of 29 June 2009.

9.  On 15 July 2009, the South Carolina ARNG published Orders 196-832 amending Orders 117-801 to show the effective date of promotion to SSG/E-6 and date of rank as 30 July 2009 instead of 29 June 2009.

10.  He was honorably retired on 30 July 2009 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 with an effective date rank of 1 August 2006.

11.  On 29 April 2010, a TDRL PEB convened and determined his condition had not improved to the extent that he was fit for duty.  The PEB recommended his permanent retirement.  He concurred.

12.  On 13 May 2010, the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, published Orders D133-07 removing him from the TDRL and permanently retiring him the rank/grade of SGT/E-5 effective 13 May 2010.  His retirement orders list his rank/grade as a SGT/E-5.

13.  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 [mobilization or 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.

14.  Paragraph 1-20 of Army Regulation 600-8-19 states that Soldiers who are pending referral to an MOS medical retention board (MMRB) under the provisions of Army Regulation 600-60 (Physical Performance Evaluation System) or referral to a physical evaluation board under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 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 applicant contends he should have been retired as a SSG/E-6.

2.  The evidence of records shows the applicant was promoted to SSG/E-6 by the South Carolina ARNG with an effective date and date of rank of 30 July 2009. 
However, he was in the PDES on active duty at the time and his WTU chain of command may not have been aware of this promotion.

3.  It appears that his DD Form 214 and TDRL retirement orders were prepared prior to the State issuing the promotion orders.  As such, he was transferred to the TDRL in the rank/grade of SGT/E-5.  It also appears that when he underwent a TDRL PEB, the USAPDA was also unaware of his State promotion to SSG/E-6. 
Accordingly, he was erroneously retired on 13 May 2010 in the rank/grade of SGT/E-5.

4.  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.  In his case, not only was he on a promotion standing list, he was also issued a promotion order prior to his retirement.

5.  Therefore, he is entitled to correction of his records to show he was placed on the TDRL as an SSG/E-6 and permanently retired in the rank/grade of SSG/E-6. 
He is also entitled to 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:

* amending Orders 099-0903, issued by Headquarters, U.S. Army Garrison, Fort Gordon, on 9 April 2009 to show his rank/grade and his retired rank/grade as SSG/E-6
* amending his DD Form 214 for the period ending 30 July 2009 to show his rank, grade, and date of rank as SSG, E-6, and 30 July 2009, respectively
* amending USAPDA Orders D133-07, dated 13 May 2010, to show his rank/grade as SSG/E-6
* paying him all back pay and allowances and retired pay 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)                                         AR20100015375



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ABCMR Record of Proceedings (cont)                                         AR20100015375



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