IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110002194 


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 her record to show she was retired as a sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.

2.  The applicant states, in effect, that she was on a SGT/E-5 promotion standing list at the time of her retirement for disability and contends she should have been promoted to SGT/E-5 in accordance with Military Personnel (MILPER) Message Number 09-067.

3.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty
* TDRL Orders 231-0002, dated 18 August 2008
* MILPER Message Number 09-067 (Consolidated Army Transition Center Policy and Procedures for Disability Evaluation System (DES) Separation Processing), issued on 25 March 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 October 2003 in the rank/grade of SPC/E-4.

2.  Her record contains (and she also provides) an Enlisted Record Brief (ERB), dated 20 August 2008.  Section I (Assignment Information), Promotion 

Points/YRMO contains the entry "350   990710," indicating she was integrated onto the ALI (Automatic List Integration) with 350 promotion points in October 2007.

3.  The applicant's record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) which shows a PEB convened on 4 August 2008 at Fort Sam Houston, TX for the purpose of evaluating her medical condition.  Based on a review of the objective medical evidence of record, the PEB determined her medical and physical impairment prevented reasonable performance of duties required by her grade and MOS.  The PEB further determined she should be placed on the Temporary Disability Retired List (TDRL) because her condition was not sufficiently stable for final adjudication.

4.  Orders 231-0002, issued by Headquarters, 3rd Infantry Division, Fort Stewart, GA, dated 18 August 2008, assigned the applicant to the TDRL with a scheduled separation date of 10 November 2008.  On 11 November 2008, she was placed on the TDRL in the rank/grade of corporal (CPL)/E-4.

5.  Her DD Form 214 shows she was retired on 10 November 2008 by reason of temporary disability.  Her DD Form 214 shows in:

	a.  Item 4a (Grade, Rate or Rank) rank as SPC;

	b.  Item 4b (Pay Grade) her pay grade as E-4; and

	c.  Item 12h (Effective Date of Pay Grade) her effective date of promotion as 22 October 2003.

6.  In the processing of this case, on 23 June 2011, an advisory opinion was obtained from the Chief, Enlisted Promotions, Promotions Branch, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official concurred that based on a review of the documents submitted by the applicant, she should have been place on the retired list as a SGT/E-5 and recommended approval of her request.

7.  On 6 July 2011, a copy of the advisory opinion was forwarded to the applicant to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states in:

	a.  Paragraph 1-20a, that Soldiers who are pending referral to a military occupational specialty (MOS)/medical retention board (MMRB) under Army Regulation 600–60 (Physical Performance Evaluation System) or referral to a medical evaluation board (MEB) under Army Regulation 40–400 (Patient Administration) or PEB under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

	b.  Paragraph 1-20c, that per the provisions of Title 10, U.S. Code, section 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.

9.  Title 10, U.S. Code, section 1372, specifies any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL, is entitled to the grade equivalent to the highest of the following:  

	a.  the grade in which he/she is serving on the date when his/her name was placed on the TDRL or on the date when retired;

	b.  the highest temporary grade in which he/she served satisfactorily;

	c.  the permanent regular grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired; or

	d.  the temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired.

10.  The applicant provides MILPER Message 09-067, issued 25 March 2009, which essentially summarizes the regulatory and statutory guidance in items 8 and 9 above.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in August 2008 it was determined the applicant’s medical condition prevented satisfactory performance of duty in her grade and specialty and she was placed on the TDRL as a CP/E-4.

2.  The applicant was in a promotable status on 10 November 2008 when she was retired and placed on the TDRL.

3.  Her DD Form 214 currently shows she was retired due to temporary disability in the rank/pay grade of SPC/E-4 with an effective date of promotion of 22 October 2003.

4.  Title 10, U.S. Code, section 1372, states any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the permanent regular grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired.

5.  Army Regulation 600-8-19, paragraph 1-20a states Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted to the designated grade effective the day before placement on the retired list.  

6.  In view of the foregoing, the applicant is entitled to correction to her
DD Form 214 to show she was promoted to SGT/E-5 with an effective date and date of rank of 10 November 2008.  She is also entitled to payment of all back pay and allowances due as a result of this correction.

7.  It would also be appropriate to amend Orders 231-0002, dated 18 August 2008, to show her retired grade of rank as SGT.  She is also entitled to any back retired pay due as a result of this correction.

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 her to the rank/grade of SGT/E-5 with an effective date and date of rank of 10 November 2008;

	b.  deleting from item 4a of her DD Form 214 the entry "SPC" and replacing it with the entry "SGT";

	c.  deleting from item 4b of her DD Form 214 the entry "E04" and replacing it with the entry "E05";

	d.  deleting from item 12h of her DD Form 214 the entry "2003 10  22" and replacing it with the entry "2008 11 10";

	e.  amending Orders 231-0002, dated 18 August 2008, to read "Retired grade of rank:  SGT"; and

	f.  paying her all back pay and allowances/retired pay due as a result of this correction.



      ___________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)                                         AR20110002194



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ABCMR Record of Proceedings (cont)                                         AR20110002194



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