IN THE CASE OF:	   

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120011786 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired by reason of disability in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. 

2.  The applicant states due to administrative errors in her unit, she had problems maintaining her promotable status after beginning a medical evaluation board (MEB) when her Army Physical Fitness Test (APFT) expired under the new promotion system in June 2011.  She fell off the promotion standing list and she lost her promotable status.  Her unit first sergeant refused to do the appropriate paperwork to fix her promotable status.  She was able to correct it in May 2012 but continued administrative errors kept her from being on the battalion promotion roster.  She was able to get a new DA Form 3355 (Promotion Point Worksheet) but it was not insufficient to show her promotable status. 

3.  The applicant provides:

* DD Form 214
* DA Form 3349 (Physical Profile)
* Statement from her former unit Adjutant
* Statement from her former unit physician


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 February 2006 and held military occupational specialty 25U (Signal Support Systems Specialist).  She served in Kuwait/Iraq from 6 September 2007 to 10 December 2008 and 
12 January to 12 August 2010.  She was promoted to SPC/E-4 on 1 March 2009.  
2.  On 11 March 2009, an informal physical evaluation board (PEB) convened at Fort Lewis, WA.  The PEB found her medical conditions of headache syndrome, degenerative disc disease, and thoracic back strain prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit.  

3.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 50-percent combined disability rating.  The PEB recommended that the applicant be permanently retired.  She concurred with the PEB's finding and recommendation.

4.  On 26 April 2012, Headquarters, 1st Infantry Division, Fort Riley, KS, published Orders 117-0019 ordering her reassignment to the Transition Center for separation processing effective 25 June 2012 and placement on the retired list in her retired rank/grade of SPC/E-4 effective 26 June 2012.  

5.  She was honorably retired on 25 June 2012 and placed on the retired list in her retired rank/grade of SPC/E-4 effective 26 June 2012 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability. 

6.  The DD Form 214 she was issued shows she completed 6 years, 4 months, and 19 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) "2009  03  01"

7.  She submitted a DA Form 3349, dated 20 December 2010, which shows she was unable to complete military requirements and had multiple complaints.  She also submitted two memoranda as follows:

	a.  Memorandum, dated 15 May 2012, from her former unit's physician who states that she was his patient from December 2010 to March 2012.  He treated her for a condition that originated in 2008 while deployed.  She was issued multiple physical profiles and she was selected to return from theater early due to her profile.  She was ultimately issued a permanent physical profile and entered the disability process. 

	b.  Memorandum, dated 18 May 2012, from her former unit's adjutant who states she was eligible for promotion to SGT/E-5.  Her combat-related medical condition prevented her from taking a record APFT or qualifying with her assigned weapon prior to the expiration of her training data.  The company chain of command did not understand or failed to execute an exception memorandum allowing her training data to be carried forward for the purpose of maintaining her promotable status under the current SGT/Staff Sergeant (SSG) promotions system. 

8.  Email attempts to the applicant's former chain of command to confirm her promotable status were unanswered.

9.  An email, dated 14 August 2012, from the Office of Junior Enlisted Promotions, U.S. Army Human Resources Command, confirmed the applicant was promotable, Command List Integration (CLI) with 39 promotion points. 

10.  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). 

11.  Army Regulation 600-8-19 (Enlisted Promotion and Reduction) 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.

12.  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 7 February 2006 to 25 June 2012.  She was a promotable SPC/E-4 at the time of her 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, she is entitled to correction of her records to show she was promoted to SGT/E-5 with an effective date and date of rank of 25 June 2012 and correction of her retirement orders as well as her DD Form 214 to show her SGT/E-5 rank and grade.  Additionally, she is also entitled to re-computation of her retired pay at the corrected retired grade of 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 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 she was promoted to SGT/E5 effective 25 June 2012
* amending Orders 117-0019, issued by Headquarters, 1st Infantry Division, Fort Riley, KS, on 26 April 2012, to show she was placed on the retired list in the grade of SGT/E-5
* deleting from items 4a, 4b, and 12h of her DD Form 214 the entries "SPC," "E-4," and "2009  03  01" and adding the entries "SGT," "E-5," and "2012  06  25" respectively
* paying her 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)                                         AR20120011786





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011786



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1