BOARD DATE: 21 June 2011
DOCKET NUMBER: AR20100028703
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as master sergeant/pay
grade E-8.
2. The applicant states he was promoted to master sergeant/E-8 effective the day before he was retired due to permanent physical disability as a result of being on the promotion list.
3. The applicant provides copies of his promotion orders and his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant, a career Reserve Component Soldier, was retired as
60-percent disabled due to a tactical vehicle accident while he was deployed to Afghanistan. He was promoted to master sergeant/E-8 effective 14 November 2010.
2. He was retired due to permanent disability on 14 November 2010. His DD Form 214 lists his rank and pay grade as sergeant first class/E-7.
3. Title 10, U.S. Code, section 1372, 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 Temporary Disability Retired List under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:
a. the grade or rank in which he is serving on the date when his name is placed on the Temporary Disability Retired List or, if his name was not carried on that list, on the date when he is retired;
b. 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;
c. 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;
d. 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.
4. Similarly, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers on a promotion list who are entitled to disability severance or retirement pay will be paid such at the promotion list grade, such a Soldier will be promoted effective the day before separation, and unfit Soldiers approved for continuation on active duty are to be promoted as soon as possible.
DISCUSSION AND CONCLUSIONS:
1. Clearly the applicant was properly promoted and both law and regulation provide that Soldiers in this and similar disability situations are to be retired at the higher pay grade.
2. The applicant's DD Form 214 should show his rank and pay grade as master sergeant/E-8 and his pay record should be audited to ensure he was justly compensated.
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 all Department of the Army records of the individual concerned be corrected by:
a. amending his DD Form 214 to show his rank and pay grade as master sergeant/E-8 with an effective date of pay grade as 15 November 2010 and
b. auditing his pay record to ensure he was/is compensated at the appropriate rate.
___________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) AR20100028703
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ABCMR Record of Proceedings (cont) AR20100028703
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