BOARD DATE: 20 October 2011
DOCKET NUMBER: AR20110006643
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 advancement on the Retired List to the rank/pay grade of sergeant (SGT)/E-5.
2. The applicant states he was told his grade determination would take place prior to his date of discharge.
3. The applicant provides:
* Orders 62-1000, dated 3 March 2006
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 5 May 2007 and 22 December 2010
* Certificate of Retirement, dated 22 December 2010
* Certificate of Appreciation
* Online Verification of a Selective Service Record Search
* Certification of Recognition
* Physical Disability Information Report
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 1 April 2010
* DA Form 199 (Physical Disability Evaluation Board Proceedings), dated
9 September 2010
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the California Army National Guard (CAARNG), on 1 March 1990, in pay grade E-1. He completed training as a small arms repairer. He was promoted through the ranks to pay grade E-5 effective 24 January 2006. The orders promoting him to pay grade E-5 state promotion is not valid and is not effective if the Soldier is not in a promotable status on the effective date of the promotion. The orders also state Soldier must enroll in the appropriate NCOES [Noncommissioned Officer Education System] within 12 months of the effective date of this promotion.
2. He was honorably discharged from the CAARNG on 28 February 2007 in pay grade E-5. He enlisted in the U.S. Army Reserve on 1 March 2007 in pay grade E-5. He was ordered to active duty on 2 August 2007.
3. Orders 295-0002 were published, on 22 October 2010, retiring the applicant by reason of physical disability and placing him on the Retired List, effective 22 December 2010, in pay grade E-4. These orders show 25 June 2008 as his date of rank to pay grade E-4.
4. The applicant's record contains no specific information on his reduction from pay grade E-5 to pay grade E-4.
5. Title 10 of the U.S. Code, section 1212 provides the legal authority for the grade to be awarded to members retiring for physical disability. It states 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 he was separated for disability; the highest grade in which he served satisfactorily as determined by the Secretary of the Army; or the grade to which he would have been promoted had it not been for the physical disability that resulted in his separation.
6. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. Paragraph 2-5 outlines circumstances that normally result in an unsatisfactory service determination on behalf of the SA. These circumstances include when a reversion to a lower grade was expressly for prejudice or cause, owing to
misconduct, caused by nonjudicial punishment, or the result of the sentence of a court-martial.
7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted. His supporting evidence has been considered.
2. The evidence of record confirms the applicant held the rank and pay grade of SGT/E-5 from 24 January 2006 to 25 June 2008.
3. On the date he was retired by reason of physical disability and placed on the Retired List he held the rank and pay grade of specialist/E-4.
4. There is no evidence in the available record to show, nor has the applicant submitted an explanation for, his reduction to pay grade E-4. In the absence of evidence to the contrary it must be presumed that the action taken in his case was correct. The ABCMR must presume administrative regularity.
5. The applicant has not proven an error or injustice by a preponderance of evidence. In view of the foregoing, his request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x__ __x______ ___x_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
_______ _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) AR20110006643
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