IN THE CASE OF:
BOARD DATE: 8 September 2010
DOCKET NUMBER: AR20100020251
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 by reason of permanent disability in the rank and pay grade of sergeant
(SGT) E-5.
2. The applicant states that he was on the promotion standing list for promotion to the rank of SGT E-5 at the time he was retired for permanent disability; however, he was retired in the rank and pay grade of Specialist (SPC) E-4. He goes on to state that the Army Regulation concerning enlisted promotions provides that enlisted personnel will be retired at his or her promotable grade if retired medically.
3. The applicant provides a copy of his Enlisted Records Brief showing he was on the promotion standing list with a score of 350 promotion points in military occupational specialty (MOS) 11B2O.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 18 March 2004 for a period of 5 years and training as an infantryman. He completed one-station unit training (OSUT) at Fort Benning, Georgia and remained assigned to Fort Benning as a light weapons infantryman.
2. He deployed to Iraq on 17 January 2005 and was awarded the Combat Infantryman Badge (CIB) on 26 February 2005. He was advanced to the pay grade of E-4 on 1 October 2005 and he departed Iraq on 26 November 2005 for Fort Benning.
3. He again deployed to Iraq on 9 March 2007 and was awarded the Purple Heart on 23 May 2007 for wounds received as a result of hostile enemy action. He departed Iraq on 28 June 2007 for Fort Benning.
4. On 23 June 2008, a Physical Evaluation Board convened at Fort Sam Houston, Texas which determined that the applicant was unfit for duty and recommended that he be retired by reason of permanent disability with a combined disability rating of 50%. The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
5. On 14 September 2008, the applicant was retired by reason of permanent disability and was placed on the Retired List in the pay grade of E-4 effective 15 September 2008 with a 50% disability rating. He had served 4 years, 5 months and 27 days of active service.
6. Paragraph 3-3 of Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) provides that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, title 10, United States Code.)
7. Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability. It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following:
a. the grade in which he is serving on the date when his name is placed on the Retired List;
b. the highest grade in which he served satisfactorily; or
c. the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should have been placed on the retired list in the rank and pay grade of SGT/E-5 has been noted and appears to have merit.
2. The applicant was on the promotion standing list for promotion to the rank of SGT/E-5 at the time he was retired by reason of permanent disability. By law, members of the Armed Forces being retired for disability are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served unless they are pending promotion to a higher grade.
3. The applicant was serving in the pay grade of E-4 at the time he was retired in the pay grade of E-4; however, by virtue of the fact that he was on the promotion standing list for the pay grade of E-5, he should have been advanced on the Retired List under operation of law to the rank of SGT/E-5 instead of being retired in the grade he was serving.
4. Accordingly, it would be in the interest of justice at this time to correct his records to show he was placed on the Retired List in the rank of SGT/E-5 effective 15 September 2008 with entitlement to all back pay and allowances that result due to this change.
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 showing he was placed on the Retired List in the rank of SGT/E-5 effective
15 September 2008, with entitlement to all back pay and allowances that flow from this change.
_______ _ _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) AR20100020251
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100020251
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140014900
Prior to his injury, he was told to prepare to go before the board because he was being placed on the promotion list for pay grade E-5 based on his time, grade, and leadership ability while in Iraq as an E-4 promotable. The evidence of record shows the applicant was medically retired on 4 September 2007 and he was placed on the retired list in the rank of SPC/E-4. It does not appear that a grade determination was requested or required at the time of the applicant's medical retirement.
ARMY | BCMR | CY2012 | 20120000165
Section III (Service Data) of the applicant's Enlisted Record Brief (ERB) dated 18 January 2011 shows she was reduced to the following ranks and grades on the dates indicated: * SPC - 18 August 2009 * PFC - 29 July 2010 7. The evidence of record confirms the applicant was promoted to PFC/E-3 on 2 July 2003 and satisfactorily held this grade until she was REFRAD, transferred to the USAR, and promoted to SPC/E-4 on 1 May 2004. As a result, there is no basis to grant the applicant's request...
ARMY | BCMR | CY2015 | 20150000528
The applicant states: * he does not believe the Board had all the evidence to make a proper determination of his case * he performed in the rank of SSG successfully; he challenges anyone to read his records and disagree * he performed the duties on three different occasions as a sergeant first class (SFC) and he was rated top block and among the best * he was awarded the Meritorious Service Medal in that rank and he served 14 years in that rank * he does not believe one incident means his...
ARMY | BCMR | CY2013 | 20130001121
The applicant requests correction of his record to show he was retired in the rank/grade of sergeant (SGT)/E-5. A grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the...
ARMY | BCMR | CY2011 | 20110024097
It states, in pertinent part, that at the time any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the Retired List; the highest grade in which he served satisfactorily; the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement. In accordance with statutory and regulatory...
ARMY | BCMR | CY2013 | 20130013155
Title 10, U.S. Code, section 1372 (Grade on Retirement Physical Disability, Members of the Armed Forces), states 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 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: * the grade or rank in which he is serving...
ARMY | BCMR | CY2004 | 2004100785C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 August 2004 DOCKET NUMBER: AR2004100785 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. He states he was a SGT/E-5 for four years and was medically discharged from the Army in 1991 and placed on the Retired List in the rank and pay grade of specialist/E-4 (SPC/E-4). The evidence of record confirms the...
ARMY | BCMR | CY2013 | 20130015758
IN THE CASE OF: BOARD DATE: 10 July 2014 DOCKET NUMBER: AR20130015758 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 7 July 2011, a Physical Evaluation Board (PEB) convened in Washington, D.C. determined that he was unfit for duty and recommended that he be retired by reason of permanent disability with a 100% disability rating. The evidence of record confirms the applicant held and satisfactorily served in the rank and pay grade of PSG/E-7.
ARMY | BCMR | CY2006 | 20060013120
The Board considered the following evidence: Exhibit A - Application for correction of military records. The evidence of record confirms the applicant held and satisfactorily served on active duty in the rank and pay grade of SSG/E-6 from 25 January 1974 through 29 April 1975. Thus, it would be appropriate and serve the interest of justice and equity to correct the applicants record to show he was placed on the Retired List in the rank and pay grade of SSG/E-6 on 5 November 1990, and by...
ARMY | BCMR | CY2010 | 20100022638
He provided his: * Medical Evaluation Board (MEB) results * Physical Evaluation Board (PEB) results * Memorandum for a Disability Grade Determination CONSIDERATION OF EVIDENCE: 1. The effective date of pay grade shows 30 June 2009. Notwithstanding the determination made by the AGDRB on 29 June 2010, Army Regulation 15-80 states that the circumstances pertinent to whether a Soldiers service is found satisfactory may include medical reasons, which may have been a contributing or a decisive...