IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009402 


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) and retirement orders to show his rank/ grade as Staff Sergeant (SSG)/E-6 vice Sergeant (SGT)/E-5.

2.  The applicant states, in accordance with Military Personnel Message Number 09-067 and Army Regulation 600-8-19 (Enlisted Promotion and Reduction) he should have been retired as a SSG/E-6.  He was on the recommended list for SSG prior to his retirement.  Army Regulation 600-8-19 states Soldiers who are medically retired will be promoted to the designated grade effective the date of separation.

3.  The applicant provides:

* Promotion recommendation list, effective 1 April 2011
* Orders Number 059-0008, dated 28 February 2012
* Orders Number 143-007, dated 22 May 2012
* DD Form 214

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.  After having had previous enlisted service, the applicant enlisted in the Georgia Army National Guard (GAARNG) on 22 June 2006.  He held several military occupational specialties, the last of which he served in was 13B (Cannon Crewmember).

3.  His DD Form 214 shows he entered active duty on 21 April 2009.  

4.  Orders Number 059-0008, issued by Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA, on 28 February 2012, showed his rank/grade as SGT/E-5 and directed:

* he be released from assignment and active duty because of physical disability incurred while entitled to basic pay under conditions that permitted his placement on the Temporary Disability Retired List (TDRL)
* his effective date of retirement was listed as 24 April 2012 
* he was to be placed on the retired list on 25 April 2012
* he was awarded a percentage of disability of 70 percent 
* statute 1202 authorized his retirement

5.  He was honorably retired on 24 April 2012.  His DD Form 214 shows in item:

* 4b (Pay Grade):  SGT/E-5
* 12i (Effective Date of Pay Grade):  25 February 2009
* 28 (Narrative Reason for Separation):  Disability, Temporary (Enhanced) 

6.  Orders Number 143-007, issued by the State of Georgia, on 22 May 2012, discharged him from the GAARNG effective 24 April 2012.

7.  He provided a SSG/E-6 promotion consideration list which contains a listing of promotable Soldiers effective 1 April 2011.  This list shows he was being considered for promotion to E-6.

8.  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). 

9.  Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(c) states 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.

10.  Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the Armed Forces), states 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 temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

* the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired
* 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
* 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 applicant served on active duty from 21 April 2009 to 24 April 2012.  He was a promotable SGT/E-5 at the time of his 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.  Therefore, he is entitled to correction of his records to show:

* he was promoted to SSG/E-6 with an effective date and date of rank of 
   24 April 2012
* grade of SSG/E-6 on his retirement orders and DD Form 214
* re-computation of his retired pay at the corrected retired grade of SSG/E-6

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:

* showing he was promoted to SSG/E6 effective 24 April 2012
* amending Orders Number 059-0008, issued by Headquarters, 3rd Infantry Division, Fort Stewart, GA, on 28 February 2012, to show he was placed on the retired list in the grade of SSG/E-6
* showing he was promoted to SSG effective 24 April 2012
* deleting from items 4a, 4b, and 12i of his DD Form 214 the entries "SGT," "E-5," and "2009  03  25" and adding the entries "SSG," "E-6," and "2012  04  24," respectively
* paying him any back pay and allowances and retired pay 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)                                         AR20120009402





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ABCMR Record of Proceedings (cont)                                         AR20120009402



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