IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100030085 


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 discharged in the rank/grade of sergeant (SGT)/E-5.

2.  He states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he is a specialist (SPC)/E-4.  He was on the promotion standing list, and by regulation when he was medically retired he should have been discharged at the higher rank, which in his case was SGT/E-5.  

3.  He provides a copy of a Recommended List for Promotion of Enlisted Personnel and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 4 (Enlistment Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve in the Delayed Entry/Enlistment Program (DEP) on 13 April 2007.  He was discharged from the DEP and enlisted in the Regular Army on 26 April 2007.  On 26 October 2010, he was honorably retired and placed on the Temporary Disability Retired List (TDRL).  

2.  Section III (Service Data) of his Enlisted Record Brief shows the highest rank/grade he held was SPC/E-4.

3.  Orders 238-0904, issued by Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, Fort Gordon, GA, dated 26 August 2010, placed him on the TDRL effective 27 October 2010.  The orders show:

* his retired grade of rank would be SPC/E-4
* the statute authorizing retirement was Title 10, U.S. Code, Section 1202 (10 USC 1202)
* Title 10 U.S. Code Section 1372 (10 USC 1372) was applicable

4.  His DD Form 214 shows in: 

* item 4a (Grade, Rate or Rank) - SPC
* item 4b (Pay Grade) - E-4
* item 12a (Date Entered [Active Duty] this Period) - 28 April 2007
* item 12b (Separation Date this Period) - 26 October 2010
* item 12c (Net Active Service this Period) - 3 years, 5 months, and 29 days
* item 12i (Effective Date of Pay Grade) - 1 January 2009
* item 18 (Remarks) - "Block 6, Period of Delayed Entry Program:  20070413-20070427"

5.  He provides a Recommended List for Promotion of Enlisted Personnel showing he was on a list for promotion to SGT/E-5.  A file name at the top of the page shows it was prepared in September 2010.

6.  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 

7.  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.  

8.  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.

9.  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 was on a promotion list when he was placed on the TDRL.  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 26 October 2010.

2.  A review of his record shows his date of entry on active duty was not accurately recorded on his DD Form 214.  As a result, the net active service shown on his DD Form 214 is also incorrect.  His actual date of entry on active duty was 26 April 2007 and his actual net active service was 3 years, 6 months, and 1 day.  He is entitled to correction of his DD Form 214 to show his correct date of entry on active duty and net active service.

3.  His period of service in the DEP is incorrectly recorded in item 18 of his DD Form 214.  The entry should show he served in the DEP from 13 to 25 April 2007.  



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.  promoting him to SGT/E-5 effective 26 October 2010 and showing he was placed on the retired list as a SGT/E-5;

	b.  paying him any back retired pay he is due as a result of this correction; and

	c.  correcting his DD Form 214 to show in:

* items 4a and 4b the entries "SGT" and "E-5" 
* item 12a he entered active duty on 26 April 2007
* item 12c his net active service was 3 years, 6 months, and 1 day
* item 12i his effective date of pay grade as 26 October 2010
* item 18 his period of service in the DEP was from 13 to 25 April 2007




      _______ _   ___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)                                         AR20100030085





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ABCMR Record of Proceedings (cont)                                         AR20100030085



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