IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110023964 


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 he was promoted to the rank/grade of sergeant (SGT)/E-5 and placed on the Temporary Disability Retired List (TDRL) in the rank/grade of SGT/E-5 instead of specialist (SPC)/E-4.

2.  The applicant states by law and regulation, Soldiers on a promotion list at the time of retirement for disability will be retired at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the Retired List.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Physical Disability Evaluation System (PDES) pocket guide
* extract of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
* Headquarters, 3rd Army, Recommended List for Promotion of Enlisted Personnel
* Enlisted Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 November 1995 and held military occupational specialty 25V (Combat Documentation/Production Specialist).  He served through two reenlistments in a variety of assignments, including Kuwait/Iraq from 22 February to 15 November 2005 and from 25 October 2007 to 30 April 2008.  He was promoted to SPC/E-4 on 14 May 1999.

2.  On 11 March 2009, an informal physical evaluation board (PEB) convened at Fort Sam Houston, TX.  The PEB found his medical conditions of post-traumatic stress disorder, shoulder strain, and plantar fasciitis of the left and right foot prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a combined rating of 70 percent.  The PEB recommended placing him on the TDRL.  He concurred.

3.  He was honorably retired on 11 April 2011 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and placed on the TDRL the rank/grade of SPC/E-4.  His DD Form 214 shows he completed 15 years, 4 months, and 20 days of creditable active service.  This form also shows in:

* item 4a (Grade, Rate or Rank) – "SPC"
* item 4b (Pay Grade) – "E-4"
* item 12i (Effective Date of Pay Grade) – "1999  05  14"

4.  He submits a copy of the Recommended List for Promotion of Enlisted Personnel, Headquarters, 3rd Army, dated 24 February 2011, which lists his name on the recommended list as being promotable to the rank/grade of 
SGT/E-5.  Additionally, he submits his ERB, dated 13 April 2011, which confirms his promotable status as of 5 July 1999.

5.  Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20 states per Title 10, U.S. Code, section 1372, Soldiers who are on a promotion list at the time of retirement for disability will be retired at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the Retired List.

6.  Title 10, U.S. Code, 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 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

* grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired
* highest temporary grade or rank in which he or she served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired
* Permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination
* temporary grade to which he or she would have been promoted had it not been for the physical disability for which he or she 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

7.  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 time of separation and are obtained from the Soldier's records (promotion or reduction orders).

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 22 November 1995 through 11 April 2011.  He was a promoted to SPC/E-4 on 14 May 1999 and he became promotable (i.e., placed on the recommended promotion list) on 5 July 1999.

2.  By law and regulation, a Soldier who is retired for physical disability under section 1201 or 1204 of Title 10, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination.  Further, he or she will be promoted to the designated grade effective the day before placement on the Retired List.

3.  Therefore, he is entitled to correction of his records to show he was promoted to SGT/E-5 with an effective date and date of rank of 11 April 2011 and correction of his DD Form 214 to show his rank and grade as SGT/E-5.


BOARD VOTE:

___X____  ___X ___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 deleting the entries "SPC," "E-4," and "1999  05  14" from items 4a, 4b, and 12i his DD Form 214 and replacing them with the entries "SGT," "E-5," and "2011  04  11," respectively.



      ____________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)                                         AR20110023964



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ABCMR Record of Proceedings (cont)                                         AR20110023964



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