BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110020325 


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 records to show his rank/grade as sergeant (SGT)/E-5.

2.  The applicant states:

* he should have been retired in the highest rank he achieved from prior service
* he was a SGT/E-5 for 4 years  

3.  The applicant provides three Noncommissioned Officer Evaluation Reports (NCOERs) for the periods March 2006 through June 2006, 1 December 2006 through 30 November 2007, and 31 March 2009 through 1 June 2009 (erroneously shown on his NCOER as 1 June 2009 through 31 March 2009). 

CONSIDERATION OF EVIDENCE:

1.  Orders Number 047-00431, Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Fort Riley, KS, dated 16 February 2006, promoted the applicant to SGT with an effective date of rank of 1 March 2006.  

2.  The applicant's NGB Form 22 (Departments of the Army and Air Force National Guard Bureau Report of Separation and Record of Service) shows the following:

* he enlisted in the Kansas Army National Guard on 10 October 2006 in the rank/grade of SGT/E-5
* he had 3 months and 9 days of prior Reserve component service
* he had 3 years of prior Federal active service
* he was ordered to active duty in support of Operation Iraqi Freedom during the period 6 December 2006 to 27 April 2008
* he was honorably released and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve) on 9 October 2009

3.  On 25 February 2010, the applicant enlisted in the Regular Army in the rank/grade of private first class (PFC)/E-3.  

4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms:

* he was retired on 14 September 2011 with the narrative reason for separation as Temporary Disability
* he completed 1 year, 6 months, and 20 days of active service in the rank/grade of PFC/E-3 during this period of active duty

5.  Orders Number 201-0028, Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, dated 20 July 2011, show the applicant was released from duty because of a physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the Temporary Disability Retired List (TDRL) with a 70 percent rating, under Title 10, United States Code (U.S.C) Sections 1372 (Grade on Retirement For Physical Disability:  Members of the Armed Forces) and 1202 (Regulars and Members on Active Duty for More than 30 Days:  TDRL), effective 15 September 2011, in the rank/grade of PFC/
E-3.  

6.  The applicant's interactive Personnel Electronic Records Management System (iPERMS) does not contain an order promoting him to SGT/E-5 during his period of service 25 February 2010 through 14 September 2011.

7.  The applicant provides copies of three NCOERs which were rendered during his period of service in the Army National Guard.  The NCOERs show his rank as SGT. 

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at the time of separation and are obtained from the Soldier's records (promotion or reduction orders).  
9.  Title 10, U.S.C., Section 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 section 1201or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show his rank/grade as SGT/E-5 was carefully considered.

2.  Orders promoted the applicant to the rank/grade of SGT/E-5 on 1 March 2006.  He enlisted in the Kansas Army National Guard in the rank/grade of SGT/E-5, and he was honorably released on 9 October 2009 in the rank/grade of SGT/E-5.  On 25 February 2010, he enlisted in the Regular Army in the rank/grade of PFC/E-3.  On 14 September 2011, he retired from the Regular Army in the rank/grade of PFC/E-3 and was placed on the TDRL in the rank/grade of PFC/E-3.  There is no evidence to show he was ever reduced for misconduct.  

3.  Therefore, based on the above and in accordance with Title 10, U.S.C., Sections 1372 and 1202, the applicant is entitled to be retired in the rank/grade of SGT/E-5 and correction of his records to show this.



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.  amending Orders 201-0028, dated 20 July 2011, to show his retired rank/grade as SGT/E-5;

   b.	directing the Defense Finance and Accounting Service to audit his pay records for the period 15 September 2011 to the present to determine the difference in retired pay between PFC/E-3 and SGT/E-5; and

	c.  paying him the difference in retired pay between PFC/E-3 and SGT/E-5 beginning 15 September 2011.



      ___________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)                                         AR20110020325



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ABCMR Record of Proceedings (cont)                                         AR20110020325



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