IN THE CASE OF:	  

		BOARD DATE:	   24 May 2012 

		DOCKET NUMBER:  AR20110023060 

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 record to show he was retired in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5. 

2.  The applicant states he was in a promotable status while going through the Medical Evaluation Board (MEB) process.  He had 759 points in primary military occupational specialty (PMOS) 68W (Health Care Specialist).  He completed three tours in the Middle East, two of which were combat tours in Iraq, was awarded the Bronze Star Medal with “V” Device, and became a casualty of war.  The Warrior Transition Unit was a relatively new organization when he processed through it and he believes this is the reason the cadre failed to ensure he was promoted to SSG on his last day of service despite having been provided the regulatory guidance from the applicant.

3.  The applicant provides:

* Enlisted Record Brief (ERB), dated 7 June 2009
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated        27 August 2009
* Orders 261-1314, dated 18 September 2009
* DA Form 199, dated 29 April 2011
* Orders D126-06, dated 6 May 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 August 2001 in the rank/grade of private/E-1.

2.  His record contains (and he also provides) an ERB, dated 7 June 2009.  Section I (Assignment Information), Promotion Points/YRMO contains the entry "759   200801," indicating he was integrated onto the SSG Promotion Standing List with 759 promotion points in January 2008.

3.  The applicant's record contains a DA Form 199 which shows a PEB convened on 27 August 2009 at Washington, DC for the purpose of evaluating his medical condition.  Based on a review of the objective medical evidence of record, the PEB determined his medical and physical impairments prevented reasonable performance of duties required by his grade and MOS.  The PEB further determined he should be placed on the Temporary Disability Retired List (TDRL) with a reexamination during May 2010.

4.  Orders 261-1314, issued by Headquarters, U.S. Army Basic Combat Training Center of Excellence, Fort Jackson, SC, dated 18 September 2009, assigned the applicant to the TDRL with a scheduled separation date of 15 December 2009.  On 16 December 2009, he was placed on the TDRL in the rank/grade of    SGT/E-5. 

5.  His DD Form 214 shows he was retired on 15 December 2009 by reason of temporary disability.  His DD Form 214 shows in:

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

	b.  Item 4b (Pay Grade) his pay grade as E-5; and

	c.  Item 12h (Effective Date of Pay Grade) his effective date of promotion as  1 January 2006.

6.  Orders D126-06, dated 6 May 2011, removed the applicant from the TDRL and permanently retired him.  These orders show his rank as SGT.

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), 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/medical retention board (MMRB) under Army Regulation 600–60 (Physical Performance Evaluation System) or referral to an 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.

8.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in December 2009 it was determined the applicant’s medical condition prevented satisfactory performance of duty in his grade and specialty and he was placed on the TDRL as a SGT/E-5.

2.  The applicant was in a promotable status on 15 December 2009, prior to being retired and placed on the TDRL.

3.  His DD Form 214 currently shows he was retired due to temporary disability in the rank/pay grade of SGT/E-5 with an effective date of promotion of 1 January 2006.

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 of his
DD Form 214 to show he was promoted to SSG/E-6 with an effective date and date of rank of 15 December 2009.  He 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 261-1314, dated 18 September 2009, and Orders D126-06, dated 6 May 2011, to show his retired grade of rank as SSG.  He 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 him to the rank/grade of SSG/E-6 with an effective date and date of rank of 15 December 2009;

	b.  amending Orders 261-1314, dated 18 September 2009, to read “Retired grade of rank:  SSG/15 December 2009”;	

   c.  deleting from item 4a of his DD Form 214 the entry "SGT" and replacing it with the entry "SSG";

	d.  deleting from item 4b of her DD Form 214 the entry "E05" and replacing it with the entry "E06";

	e.  deleting from item 12h of her DD Form 214 the entry "2006 01 01" and replacing it with the entry "2009 12 15"; 

	f.  amending Orders D126-06, dated 6 May 2011, to show his rank at the time as “SSG”; and

	g.  paying him 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)                                         AR20110023060



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ABCMR Record of Proceedings (cont)                                         AR20110023060



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