IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110021691 


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 rank/grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and retirement grade be changed to sergeant first class (SFC)/E-7.  He also requests back pay and entitlements.

2.  He states the Fiscal Year (FY) 97 SFC/Advanced Noncommissioned Officer Course (ANCOC) selected him for promotion to SFC in military occupational specialty (MOS) 91P (Radiology Specialist).  He adds he was still on active duty pending a medical separation during the board's review and determination process.  He offers that he was medically retired in a lower grade without the benefit of a review.

3.  He provides the following:

* DD Form 214
* Orders 097-2200, dated 7 April 1997
* FY97 SFC/ANCOC Selection List, page 16
* Orders D41-11, dated 1 March 2001
* Orders 60-1, dated 1 March 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 20 February 1979. 

3.  He was selected for promotion to SFC under the FY97 SFC/ANCOC Selection Board.  His sequence number was listed as "2" in MOS 91P.

4.  On 7 March 1997, a Physical Evaluation Board (PEB) was convened.   The board found the applicant was physically unfit and recommended he be placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 70 percent.  He concurred with the findings and recommendations of the PEB and wavied a formal hearing of his case. 

5.  On 25 June 1997, he was honorably retired and placed on the TDRL.  On
26 June 1997, he was placed on the retired list in the rank of staff sergeant (SSG)/E-6.

6.  Item 4a/4b (Grade, Rate, or Rank/Pay Grade) of his DD Form 214 shows SSG/E-6.  The effective date of pay grade is listed as 14 November 1989.  This form also shows he completed a total of 18 years, 4 months, and 6 days of net active service.  

7.  Orders D41-11, dated 1 March 2001, show that on 1 March 2001 he was removed from the TDRL and permanently retired the following day in the grade of rank of SSG/E-6.

8.  U.S. Army Human Resources Command (HRC) Orders 60-1, dated 1 March 2012, show the applicant was promoted to SFC/E-7 in MOS 91P effective 
1 March 2001.  However, there is no provision in the regulation or Title 10, U.S. Code that allows for the promotion of a Soldier on the day they are removed from the TDRL and permanently retired.

9.  During the processing of this case, on 6 March 2012, an advisory opinion was obtained from the Chief, Department of Army Promotions Branch, HRC, who recommended approval of the applicant's request.  The advisory official stated the applicant should have been promoted to SFC before he was separated from the Army.  He said that under the provisions of Title 10, U.S. Code, section 1372, an individual whose name is placed on the TDRL under Title 10, U.S. Code, section 1202 or 1205 is, upon retirement for physical disability, entitled to the grade on retirement to which he would have been promoted had it not been for the physical disability.

10.  A copy of the advisory opinion was forwarded to the applicant and on 
28 March 2012, he acknowledged receipt.

11.  MILPER Message Number 05-084, issued on 4 April 2005, states, in pertinent part, that per the provisions of Title 10, U. S. Code, section 1372, Soldiers who are 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.  The policy pertains to Soldiers of all ranks.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated that Soldiers were nonpromotable to a higher grade when they were undergoing medical evaluation proceedings to determine ability to perform in their recommended MOS.  Once a PEB determined that a Soldier was no longer qualified for continued active service, he/she would be removed from the promotion list.

13.  Army Regulation 600-8-19, paragraph 1-20a, currently in effect, states that Soldiers who are pending referral to an MOS/medical retention board (MMRB) or referral to a medical evaluation board or a PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.  Paragraph 1-20c states 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.

14.  Title 10, U.S. Code, Section 1202 (Regulars and Members on Active Duty for more than 30 Days) states that upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if it has also been determined that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL, with retired pay computed under section 1401 of this title.


15.  Title 10, U.S. Code Section 1372 (Grade on Retirement for Physical Disability: members of the Armed Forces), provides 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, or whose name is placed on the TDRL, 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 TDRL 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 service Secretary. 

	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 evidence of record shows the applicant was selected for promotion to SFC with a sequence number of "2" prior to his placement on the TDRL on 
25 June 1997.

2.  Based on the regulation in effect at the time of his retirement in 1997, he would not have been promoted to E-7 prior to separation, but he would have been placed on the retired list as an E-7.  Therefore, his DD Form 214 is correct as constituted.  However, he is entitled to correction of his retirement orders to show he was placed on the retired list on 26 June 1997, in the grade of E-7.  Additionally, he is entitled to any back retired pay due as a result of this correction.

3.  It is noted that there are no provisions in the regulation or Title 10 that will allow the applicant to be promoted to SFC on the day he was removed from the TDRL (1 March 2001).  



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending Orders 097-2200, dated 7 April 1997 to show he was placed on the retired list in the rank/grade of SFC/E-7; and

	b.  paying him any back retired pay due as a result of this correction.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending his DD Form 214 to show his rank/grade as SFC/E-7 or paying him any back pay and entitlements in excess of the back retired pay recommended above.  



      _______ _  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)                                         AR20110021691





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ABCMR Record of Proceedings (cont)                                         AR20110021691



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