IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120021420 


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 promotion on the Retired List from staff sergeant (SSG)/E-6 to first lieutenant (1LT)/O-2.

2.  The applicant states he satisfactorily served in the rank/grade of 1LT/O-2 from 31 May 1997 to 30 June 1999.  He was honorably discharged from active duty (U.S. Air Force (USAF)) on 30 June 1999 by reason of completion of his required service. 

3.  The applicant provides his USAF and Regular Army (RA) DD Forms 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 30 December 1985.  He was discharged from the USAR on 11 December 1986, the date preceding his enlistment in the U.S. Navy Reserve (USNR).  

2.  He enlisted in the USNR on or about 12 December 1986 and he entered active duty (USN) on 17 August 1987.  He was honorably released from active duty on 16 August 1989 and he was transferred to the USNR to complete his remaining service obligation.  

3.  He was honorably discharged from the USNR on 12 September 1993. 

4.  He was appointed as a second lieutenant in the USAF Reserve (USAFR) and entered active duty (USAF) on 20 June 1995.  He was promoted to 1LT/O-2 on 31 May 1997.  He was honorably discharged from the USAF on 30 June 1999.

5.  He enlisted in the USAR on 10 November 1999 and he followed that with an enlistment in the Georgia Army National Guard (ARNG) on 3 April 2001.  He was discharged from the ARNG on 9 September 2002. 

6.  He enlisted in the Texas ARNG on 29 September 2004.  After a transfer to the California ARNG, he was honorably discharged from the ARNG on 28 September 2007.  

7.  He enlisted in the RA on 10 January 2008.  He was promoted to sergeant/E-5 on 1 October 2008.  He was assigned to Fort Irwin, CA.

8.  On 15 May 2012, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of lower back pain, diabetes, and gout.  The MEB recommended his referral to a physical evaluation board (PEB).  He was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

9.  On 13 September 2012, an informal physical evaluation board (PEB) convened 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 70-percent disability rating.  The PEB recommended his permanent disability retirement.  He concurred.

10.  On 16 October 2012, Headquarters, National Training Center, Fort Irwin, CA, published Orders 290-0032 releasing him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his placement on the "Temporary Disability Retired List" and placing him on the Retired List in his retired rank/grade of SSG/E-6.  The orders listed the statute authorizing retirement as section 1202 [of Title 10, U.S. Code].  The official who prepared the retirement orders used Format 610 which are used for permanent retirement

11.  He was honorably retired on 30 October 2012 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:

* Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) – "SSG" and "E-6"
* Item 12f (Effective Date of Pay Grade) – "2012-10-30"

12.  Title 10, U.S. Code, section 1372 (Grade on retirement for physical disability: members of 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:

	a.  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. 

	b.  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. 

	c.  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. 

	d.  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.

13.  Title 10, U.S. Code, section 1201 states, upon a determination by the Secretary concerned that a member described in subsection (c) of this title is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b)13.  

14.  Title 10, U.S. Code, section 1202 states, upon a determination by the Secretary concerned that a member described in section 1201c of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the TDRL, with retired pay computed under section 1401 of this title. 
15.  Army Regulation 600-8-105 (Military Orders) prescribes the policies and mandated operating tasks for the orders program of the Military Personnel System and establishes standards and provides an operational document in a logical sequence.  It states, Format:

* 610, applies to Disability Retirement (Temporary) of Regular Army Personnel
* 612, applies to Disability Retirement (Permanent) of Regular Army Personnel

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army from 10 January 2008 to
30 October 2012.  He held the rank/grade of SGT/E-5 at the time of his retirement.  It appears he was a promotable SGT.  As required by law, the servicing military personnel office promoted him to SSG/E-6 on the date of retirement and placed him on the Retired list in the higher grade SSG/E-6. 

2.  However, the applicant had previously served satisfactorily in the rank/grade of 1LT/O-2.  Also by law, a 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 temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

3.  Therefore, although no change is warranted to his DD Form 214, the applicant is entitled to correction of his retirement orders to show he was placed on the Retired List in the rank/grade of 1LT/O-2 and entitlement to retired pay at this rank/grade effective 31 October 2012.  Additionally, his retirement orders contained an administrative error in that the authority is listed as section 1202 of Title 10, USC, but that the applicant was released from assignment because of permanent vice temporary physical disability and the incorrect orders format was used.









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:

* revoking Orders 290-0032, issued by Headquarters, National Training Center, Fort Irwin, CA, on 16 October 2012
* issuing him new retirement orders, Format 612, listing the:

* Reason for retirement as permanent
* The authority as section 1201
* Retired grade or rank as 1LT

* paying him back 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)                                         AR20120021420





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ABCMR Record of Proceedings (cont)                                         AR20120021420



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