IN THE CASE OF:	   

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20100028858 


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 record to show he was retired in the rank/grade of sergeant (SGT)/E-5.  He also requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his date of birth (DOB) is 8 March 1984 and any additional awards or decorations he is authorized.

2.  He states he was medically retired as a SGT, but his paperwork and Certificate of Retirement show he was a specialist (SPC)/E-4.  His DOB is shown as 5 April 1984 [on his DD Form 214], but it is 8 March 1984.  He also states he did not receive the decorations and awards authorized while he served, including awards for serving in Iraq from February 2007 to April 2008.

3.  He provides:

* a self-authored statement
* a Certificate of Retirement
* a memorandum to him from the U.S. Army Physical Disability Agency (USAPDA), dated 15 October 2010, subject: Transmittal of Separation Documents
* orders attaching him to Walter Reed Army Medical Center
* a letter from the Defense Finance and Accounting Service (DFAS), dated 2 September 2009
* a Chronological Record of Medical Care, dated 17 June 2010
* a Retiree Account Statement
* his DD Form 214
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 June 2005.  He reenlisted on 19 March 2008.  On 25 August 2009, he was honorably retired and placed on the Temporary Disability Retired List (TDRL).  

2.  Item 6 (DOB) of the DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) completed when he enlisted in 2005 shows his DOB was recorded as 8 March 1984.  

3.  Item 10 (DOB) of the DD Form 1966 (Record of Military Processing - Armed Forces of the United States) completed in 2005 shows 5 April 1984 and shows the recruiter verified his name, age, and citizenship with his birth certificate.  

4.  His reenlistment contract shows the DOB 5 April 1984.

5.  His birth certificate is not available for review by the Board.

6.  His DD Form 214 shows in:

* items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) the entries "SPC" and "E04"
* item 5 (DOB) - 5 April 1984
* item 12h (Effective Date of Pay Grade) - 1 July 2007
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the:

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with campaign star
* Army Service Ribbon
* Overseas Service Ribbon
* Combat Infantryman Badge
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Rifle and Grenade Bars

* item 18 (Remarks) he served in Iraq from 5 February 2007 to 15 April 2008

7.  His Enlisted Record Brief (ERB) shows in:
* Section III (Service Data) the highest rank he held was SPC/E-4 and his date of rank was 1 July 2007
* Section IV (Personal/Family Data) his DOB is 5 April 1984 
* Section IX (Assignment Information) he was assigned to Company A, 2d Battalion, 16th Infantry Regiment, from 15 August 2006 to 23 September 2008

8.  Permanent Order 202-10, issued by the U.S. Army Human Resources Command, Fort Knox, KY, dated 21 July 2010, announced award of the Valorous Unit Award (VUA) to the 2d Battalion, 16th Infantry Regiment, for heroism in action during the period 14 March 2007 to 3 April 2008.

9.  Orders 177-0106, issued by Headquarters, U.S. Army Garrison, 
Fort Sam Houston, TX, dated 26 June 2009, placed him on the TDRL.  The orders show his rank/grade at the time was SPC and that his retired grade of rank would be SGT.  

10.  During the processing of this case, a staff member at the Defense Finance and Accounting Service (DFAS) reviewed his record and confirmed 
Orders 177-0106 are the authority for his retired pay as a SGT/E-5.

11.  He provides two orders issued by the USAPDA:

* Orders 356-22, dated 22 December 2009, attached him to Walter Reed Army Medical Center for a periodic TDRL physical examination and show his rank as SGT (Retired)
* Orders D287-13, dated 15 October 2010, permanently retired him and show his rank as SPC

12.  He also provides:

* a Certificate of Retirement showing his rank as SPC
* a memorandum, dated 2 September 2009, and Retiree Account Statement, dated 29 September 2009, from DFAS showing his rank as SGT
* a Chronological Record of Medical Care, dated 17 June 2010, showing his DOB as 8 March 1984 and his rank as SGT

13.  Title 10, U.S. Code, Section 1201 (10 USC 1201) states the Secretary concerned may, if all required determinations are made, retire a member of the Regular Army with retired pay if the member is found to be unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay.
14.  10 USC 1202 authorizes the Secretary concerned to place a member on the TDRL with retired pay if a disability is not determined to be of a permanent nature and stable provided he also determines accepted medical principles indicate the disability may be of a permanent nature.  

15.  10 USC 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 10 USC 1201, or whose name is placed on the TDRL under 10 USC 1202, 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.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, per the provisions of 10 USC 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's record is ambiguous with regard to his promotion to SGT.  Orders published by the U.S. Army Garrison, Fort Sam Houston, TX directed his placement on the TDRL as a SGT, indicating he was on a promotion list.  The USAPDA issued orders indicating he was retired as a SGT, but also issued orders permanently retiring him as a SPC.  DFAS has confirmed he is receiving retired pay as a SGT.

2.  The record shows no reason to doubt the accuracy of the orders placing him on the TDRL as a SGT.  Because it appears he was on a promotion list, by law and regulation he was entitled to be promoted to SGT/E-5 the day prior to being placed on the TDRL.  Therefore, he is entitled to correction of his record to show he was promoted to SGT/E-5 effective 25 August 2009.  

3.  He states his DOB is 8 March 1984; however, his record shows he served under the DOB 5 April 1984.  Although it appears this may be an error, in the absence of a certified birth certificate confirming his DOB it would be inappropriate to correct his record to show his DOB is 8 March 1984.

4.  He served in a unit during a period for which the unit received the VUA.  Therefore, he is entitled to correction of his record to show this unit award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  promoting him to SGT/E-5 effective 25 August 2009;

	b.  correcting USAPDA Orders D287-13, dated 15 October 2010, to show his rank as SGT;

	c.  issuing him a corrected Certificate of Retirement showing his rank as SGT;

	d.  deleting from his DD Form 214:

* "SPC" and "E04" from items 4a and 4b
* "2007  07  01" from item 12h

	e.  adding to his DD Form 214:
* "SGT" and "E05" in items 4a and 4b
* "2009  08  25" in item 12h
* "Valorous Unit Award" in item 13

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his DOB.



      _____________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)                                         AR20100028858





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ABCMR Record of Proceedings (cont)                                         AR20100028858



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