IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120005005 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired by reason of disability in the rank/grade of sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6.

2.  The applicant states his retired rank should be changed from SSG to SFC per Orders 028-0002 issued by Headquarters, Walter Reed Army Medical Center, dated 28 January 2005.

3.  The applicant provides his DD Form 214, Orders 312-0012 (retirement orders), and Orders 028-0002 (amendment of retired grade).

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 4 January 1996 and held military occupational specialties 11B (Infantryman) and 18E (Special Forces Communications Sergeant).  He served in a variety of stateside and overseas assignments and he was promoted to SSG/E-6 on 1 October 2002.

3.  In September or October 2004, an informal physical evaluation board (PEB) convened at Walter Reed Army Medical Center and found his medical conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 100-percent combined disability rating.  The PEB recommended placement of the applicant on the Temporary Disability Retired List (TDRL).

4.  On 7 November 2004, Headquarters, Walter Reed Army Medical Center, published Orders 312-0012 ordering his reassignment to the Transition Center for separation processing effective 27 January 2005 and placement on the TDRL in the rank/grade of SSG/E-6 on 28 January 2005.

5.  He was honorably retired on 27 January 2005 and placed on the TDRL effective 28 January 2005 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability.  His DD Form 214 shows in:

* item 4a (Grade, Rate, or Rank) – "SSG"
* item 4b (Pay Grade) – "E-6"
* item 12i (Effective Date of Pay Grade) – "2002  10  01"

6.  On 28 January 2005, Headquarters, Walter Reed Army Medical Center, published Orders 028-0002 amending Orders 312-0012 to show his retired grade as SFC vice SSG.

7.  He was ultimately removed from the TDRL on 27 January 2010 and permanently retired effective 28 January 2010.

8.  An email from the Office of Senior Enlisted Promotions, U.S. Army Human Resources Command, dated 5 September 2012, confirmed the applicant was promotable at the time of his temporary retirement.

9.  Military Personnel Message Number 05-084, dated 4 April 2005, Subject: Enlisted Eligibility Regarding Enlisted Soldiers Undergoing Evaluation by the MOS/Medical Retention Board (MMRB), Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB), uses as reference, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and Headquarters, Department of the Army memorandum, dated 28 March 2005 and states 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. 

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

11.  Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability, Members of the Armed Forces), states 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 unless entitled to a higher retired grade under some other provision of law:

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

12.  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 rank and pay grade at the 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 4 January 1996 to 27 January 2005. 
He was a promotable SSG/E-6 at the time of his temporary disability retirement.  By law and regulation, 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.

2.  However, although he may be placed on the retired list in the higher grade, the requirement to promote a Soldier undergoing an MEB or a PEB the day prior to placing him on the retired list did not become effective until 28 March 2005.  The applicant retired on 27 January 2005.  As such, his DD Form 214 correctly listed his rank/grade of SSG/E-6 and his retirement orders correctly retired him in the higher grade.  There is neither an error nor an injustice here.  Therefore, no relief should be granted. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X __  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20120005005



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ABCMR Record of Proceedings (cont)                                         AR20120005005



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