IN THE CASE OF:
BOARD DATE: 17 February 2011
DOCKET NUMBER: AR20100016311
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 that his records be corrected to show he was retired in the rank of first sergeant (1SG) and that he was promoted to the rank of command sergeant major (CSM)/E-9.
2. The applicant states last position he held before being inventorially moved to medical processing and medically retired was that of 1SG. He further states that during the medical process he was prevented by regulation from further advancement and promotion when he was qualified for promotion and therefore should be advanced in accordance with Title 10, U.S. Code, section 1372.
3. The applicant provides copies of:
* a DA Form 4187 (Personnel Action) appointing him to the rank of 1SG
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 1 March 2004
* orders transferring him to the Retired Reserve
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 8 September 1959. He was serving in a U.S. Army Reserve (USAR) troop program unit (TPU) in Texas when he was promoted to the rank of master sergeant (MSG)/E-8 on 1 March 2001.
2. On 1 November 2001, a DA Form 4187 was approved that laterally appointed the applicant to the rank of 1SG effective 1 March 2001.
3. On 2 January 2003, he was ordered to active duty in support of Operation Enduring Freedom and served in Kuwait and Iraq from 12 February 2003 to 17 January 2004. He was returned to Fort Hood, Texas where he was honorably released from active duty on 1 March 2004 due to completion of required service.
4. On 14 July 2004, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
5. On 10 July 2006, he was reassigned from his TPU to the 90th Regional Readiness Command Trainees, Transients, Holdees and Student (TTHS) account in the rank of MSG in military occupational specialty (MOS) 92A5O.
6. On 17 May 2007, he was transferred to the Retired Reserve in the rank of MSG in MOS 92A5O due to being medically disqualified not as a result of his own misconduct.
7. A review of his official records failed show the applicant was ever awarded the special qualification identifier (SQI) of "M" which identifies a 1SG. Additionally, there is no evidence to show he ever attended or completed the 1SG course. The applicant's records contain no evidence to show he was selected for promotion to pay grade E-9.
8. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states that an MSG who formerly held the title of 1SG and who wishes to be shown on the Army of the United States (AUS) Retired List in his or her former title must include a copy of the appointment to 1SG with the DD Form 108 (Application for Retired Pay Benefits).
9. Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability: Members of Armed Forces), provides 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 1202 or 1204 of this title, or whose name is placed on the Temporary Disability Retired List under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest permanent 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 his physical examination for promotion.
DISCUSSION AND CONCLUSIONS:
1. While there is no doubt the applicant successfully served as a 1SG of his TPU prior to being transferred to the command's TTHS account, he was serving in the rank of MSG when he was transferred to the USAR Control Group (Retired) and that rank is properly reflected. However, when he applies for retired pay at age 60, he should provide a copy of his 1SG appointment document along with his application in order to be placed on the AUS Retired List as a 1SG.
2. Since he is not eligible to receive retired pay until 8 September 2019, it does not appear he is eligible for placement on the Retired List in the rank of 1SG at this time.
3. There is no evidence in his official records and he has not submitted any to show he was selected for promotion to pay grade E-9 and was denied that promotion as a result of his medical condition. In the absence of such evidence, there appears to be no basis to grant his request for advancement to pay grade E-9.
4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ___X____ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States
during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_________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.
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