BOARD DATE: 25 October 2011
DOCKET NUMBER: AR20110009957
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, in effect, that his records be corrected to show that he was retired in the pay grade of E-5 with entitlement to all back pay and allowances.
2. The applicant states that before he was discharged he was supposed to receive his E-5 stripes, which never happened. He goes on to state that he was told that he would receive his promotion in the future and that he would be retired in pay grade E-5. He also states that he believes he should be promoted to pay grade E-5 because he went through a lot in the military and should receive his stripes out of respect for his service.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. After serving 3 years, 8 months, and 8 days of prior active service, the applicant enlisted in the Regular Army on 22 March 2006 for a period of 3 years, training as a food service specialist and a $19,000 enlistment bonus.
2. He completed basic training at Fort Knox, Kentucky and advanced individual training at Fort Lee, Virginia before being transferred to Fort Stewart, Georgia for his first and only duty assignment. He was advanced to the pay grade of E-4 on 1 October 2006.
3. On 22 February 2008, a Physical Evaluation Board (PEB) at Fort Sam Houston, Texas determined that the applicant was unfit to perform his duties and recommended that he be placed on the Temporary Disability Retired List (TDRL) in the pay grade of E-4 with a 40% disability rating for lumbar interverterbral disc syndrome. The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
4. On 12 May 2008, the applicant was retired and placed on the TDRL in the pay grade of E-4 effective 13 May 2008.
5. On 9 July 2010, a PEB was conducted at Fort Sam Houston which recommended that the applicant be removed from the TDRL and permanently retired in the pay grade of E-4 with a 40% disability rating. The applicant concurred and waived a formal hearing of his case.
6. On 23 July 2010, he was removed from the TDRL and was permanently retired in the pay grade of E-4 effective 24 July 2010 with a 40% disability rating.
7. A review of the applicant's official records failed to show he held promotion list standing to pay grade E-5 at the time of his retirement and placement on the TDRL.
8. Title 10, U.S. Code, section 1372 provides, in pertinent part, that 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 applicantÂ’s contentions have been noted. The applicant has not provided and the records do not contain any evidence to show that the applicant was eligible for promotion to pay grade E-5.
2. It is also noted that the applicant had two occasions to dispute his retired grade after the PEBs made their recommendations and he elected not to do so.
3. Therefore, in the absence of evidence to show that he was in a promotable status at the time of retirement there appears to be no basis to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X__ ___X_____ ___X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20110009957
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ABCMR Record of Proceedings (cont) AR20110009957
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