IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20110024097 


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 to be advanced on the retired list to the highest grade he held satisfactorily while on active duty.

2.  The applicant states, in effect:

	a.  In accordance with Title 10, U.S. Code 1372 he is entitled to be retired in the highest grade he would have been promoted to had he not been retired due to physical disability.

	b.  He "understands" that Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) states "generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by nonjudicial punishment (NJP) pursuant to Article 15, Uniform Code of Military Justice (UCMJ), or the result of the sentence of a court-martial."  

	c.  On 26 December 2011, he retired in the rank of staff sergeant (SSG)/pay grade E-6, but held the rank/paygrade of sergeant first class (SFC)/E-7 for 
2 years, 10 months, and 20 days while on active duty.

	d.  He served on active duty for a total of 14 years, 9 months, and 16 days prior to being placed on the permanent disability retirement list.



3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 December 2011
* a DA Form 4980-12 (Meritorious Service Medal Certificate)
* a copy of a 2011 Promotion Standing List
* the AGDRB findings, dated 11 August 2011

CONSIDERATION OF EVIDENCE:
1.  On 18 December 1986, the applicant enlisted in the Indiana Army National Guard (INARNG) and continued to serve in the ARNG and U.S. Army Reserve through reenlistments or extensions until he was retired honorably due to a permanent disability on 25 December 2011.

2.  Orders Number 365-002, issued by the Military Department of Indiana, Indianapolis, IN, dated 31 December 2003, show he was promoted to SFC, effective 1 January 2004.

3.  Orders Number 004-006, issued by the Military Department of Indiana, dated 4 January 2006, ordered him to full time National Guard duty in an Active Guard Reserve status, effective 24 March 2006.

4.  Orders Number 331-021, issued by the Joint Forces Headquarters Indiana, Indianapolis, IN, dated 27 November 2006, show he was reduced from SFC to SSG for misconduct, effective 21 November 2006.

5.  The applicant’s DD Form 214 shows he was honorably released from active duty on 28 February 2010 for completion of required active service.  Item 4a (Grade, Rate or Rank) of the DD Form 214 shows his rank as SSG.  Item 4b (Pay Grade) of this form shows his pay grade as E-6.

6.  Orders Number A-02-005785, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 24 February 2010, show he was retained on active duty, effective 1 March 2010, in order to participate in the Reserve Component Warriors Transition Medical Processing program for completion of medical care and treatment from 1 March 2010 to 21 February 2011.

7.  Orders Number A-09-119680, issued by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, dated 9 September 2011, show he was retained on active duty, effective 15 August 2011, in order to participate in the Reserve Component Warriors Transition Medical Processing program for completion of medical care and treatment.
8.  He submitted one page of an 2011 Promotion Standing List which indicates he was selected for promotion by a board that convened on 11 March 2011.

9.  He submitted a DA Form 4980-12, which shows Permanent Orders Number 177-15, issued by the Northern Regional Medical Command, Washington, DC, dated 23 June 2011, awarded him the Meritorious Service Medal for meritorious service from 12 December 2001 to 31 August 2011.

10.  He submitted a memorandum from the President, AGDRB, Subject:  Disability Grade Determination (10 U.S. Code, Section 1372), dated 11 August 2011.  The AGDRB reviewed his official military personnel file and the Physical Evaluation Board Proceedings, including his NJP while in pay grade E-7.  The AGDRB determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement/separation pay was his pay grade on the date of separation.

11.  Orders Number 341-011, issued by Headquarters, Maryland Army National Guard, Baltimore, MD, dated 7 December 2011, show he was discharged from the ARNG and reassigned to the Retired Reserve, effective 25 December 2011.

12.  A DD Form 214, issued on 25 December 2011, shows he was retired honorably by reason of disability, permanent.  Item 4a of the DD Form 214 he was issued at the time of retirement shows his rank as SSG.  Item 4b (Pay Grade) of this form shows his pay grade as E-6.

13.  A staff member of this Board spoke with the Noncommissioned Officer in Charge, G1 of the Maryland National Guard Human Resources, 5th Army Regiment, Baltimore, MD who confirmed that the applicant was selected for promotion and held valid list status to SFC by the 2011 promotion board which convened on 11 March 2011 on the date he was retired.

14.  Army Regulation 600-8-19 (Enlisted Promotions), paragraph 1-20a, states Soldiers pending referral to a medical evaluation board or physical evaluation board will not be denied promotion, if already promotable, on the basis of medical disqualification if they are otherwise qualified for promotion.  Section 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.  The Soldier will be promoted to the designated grade effective the day before placement on the retired list.  

15.  Title 10, U. S. Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that at the time any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the Retired List; the highest grade in which he served satisfactorily; the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention that he should have been promoted based on the highest grade he previously held, evidence of record shows he was reduced from SFC to SSG a the result of NJP.  However, he was later recommended for promotion to SFC a second time, but was retired, effective 25 December 2011, by reason of permanent disability prior to being promoted.  

2.  In accordance with statutory and regulatory guidance, it would be equitable to correct his record to show he was promoted to SFC/pay grade E-7 with an effective date and date of rank (DOR) of 25 December 2011 and placed on the retired list in the rank and grade of SFC/pay grade E-7.  In addition, he should be provided all pay and allowances and 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 the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends all Department of the Army records of the individual concerned be corrected by:

* showing he was promoted to SFC/pay grade E-7 with an effective date and date of rank of 25 December 2011 and amending his DD Form 214 accordingly
* showing he was placed on the retired list in the rank and grade of SFC/pay grade E-7 

* paying him all pay and allowances and 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)                                         AR20110024097



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024097



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1