IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100016248 


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, in effect, correction of his retirement orders to show his rank as sergeant (SGT), pay grade E-5. 

2.  He states he was promoted from the rank of specialist (SPC), pay grade E-4 to the rank of SGT, pay grade E-5.  The retirement office did not amend his orders upon his separation date.  

3.  He provides his retirement orders, E-5 promotion orders, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army in pay grade E-1 on 12 August 2003, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 25U, Signal Support Systems Specialist. 

2.  His records show he served in Iraq from 17 January 2005 to 10 January 2006 and from 11 May 2007 to 4 July 2008. 

3.  During his second deployment to Iraq, on 24 January 2008, Headquarters, 1st Brigade Combat Team, 82nd Airborne Division, published Orders Number 024-53 announcing his promotion to SGT, pay grade E-5, with an effective date of 1 February 2008.  He also executed a 4-year reenlistment in pay grade E-5 on 16 February 2008.
4.  On 1 July 2008, Landstuhl Regional Medical Center, Germany, published Orders A-07-812225, medically evacuating the applicant and reassigning him to Fort Stewart, GA, for the purpose of continued medical care.  The orders listed his rank as a SGT.

5.  On 25 July 2008, he was awarded the Army Commendation Medal, for meritorious service in support of Operation Iraqi Freedom from 11 May 2007 to 25 July 2008.  The orders also listed his rank as a SGT.

6.  On 15 January 2010, an informal Physical Evaluation Board (PEB) convened and considered the applicant's disabilities of post-traumatic stress disorder, epistaxis, and chronic low back pain due to strain.  The PEB found his medical and physical impairments prevented reasonable performance of duties required by his grade and MOS.  The PEB recommended placement on the Temporary Disability Retired List (TDRL) with a combined rating of 60 percent.  On 19 January 2010, the applicant concurred with findings and recommendations of the PEB.  The PEB Proceedings show his rank as SPC, pay grade E-4.

7.  On 9 February 2010, Headquarters, Fort Stewart, GA, published Orders Number 040-0043, reassigning him for the purpose of separation with an effective date of 28 April 2010.  The same orders also placed him on the TDRL in the retired rank of SPC effective 29 April 2010.

8.  It is unclear if the applicant had previously been reduced to SPC/E-4; however, on 3 March 2010, Headquarters, Fort Stewart, GA, published Orders 62-501 promoting him again to SGT/E-5 effective 28 April 2010.  The orders stated the promotion was not valid and would be revoked if the Soldier concerned was not in a promotable status on the effective date of promotion.  The authority for the promotion was Army Regulation 600-8-19 (Enlisted Promotions), paragraph 1-20c.

9.  He was honorably retired on 28 April 2010, under the provisions of Army Regulation 635-40, chapter 4, for temporary disability, and placed on the TDRL.  Items 4a (Grade, Rate or Rank), 4b (Pay Grade), and 12h (Effective Date of Pay Grade) show the entries "SGT," "E-5," and "2010  04  28" respectively.

10.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-20c specifies that per the provisions of Title 10, U.S. Code, section 1212, 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.  

11.  Title 10, U.S. Code, section 1372, specifies any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the highest of the following:  (1) the grade in which he is served on the date when his name was placed on the TDRL or on the date when retired, or (2) the highest temporary grade in which he served satisfactorily, (3) the permanent regular grade to which he would have been promoted had it not been for the physical disability for which he is retired, (4) the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SGT/E-5 by official orders on 1 February 2008.  

2.  The evidence of record shows in January 2010 a PEB determined the applicant’s medical condition prevented satisfactory performance of duty in his grade and specialty and he was placed on the TDRL.  On 3 March 2010, orders were published for his promotion to pay grade E-5 with an effective date of 28 April 2010.  The authority for the promotion was Army Regulation 600-8-19, paragraph 1-20c.  He was retired on 28 April 2010 and placed on the TDRL on 29 April 2010.  

3.  Although his DD Form 214 shows the correct rank, grade, and effective date, his retirement orders listed his retired grade as SPC instead of SGT.  Therefore, he is entitled to correction to his retirement orders to show he was retired in the rank of SGT, pay grade E-5, effective 29 April 2010, with entitlement to appropriate back pay based on this adjustment.

BOARD VOTE:

___X____  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a. amending Orders 040-0043, issued by Headquarters, Fort Stewart, GA, on 9 February 2010, to show his current and retired rank as SGT, pay grade E-5, effective 28 April 2010;

   b.  paying the applicant all back pay and allowances due as a result of this correction; and 

   c.  providing him with corrected retirement orders.



      _______ _   _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)                                         AR20100011248



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ABCMR Record of Proceedings (cont)                                         AR20100016248



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