IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20130000310 


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 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 vice staff sergeant.

2.  The applicant states at the time of his medical retirement, his unit failed to take the necessary updates to effect his rank of SFC on his DD Form 214. 

3.  The applicant provides his DD Form 214 and retirement orders, physical disability information report, and acceptance notification of E-7 promotion. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Texas Army National Guard (TXARNG) on 21 October 2004 and he held military occupational specialty 11B (Infantryman).  He was promoted to SSG/E-6 on 15 April 2006. 

2.  He entered active duty in support of Operation Iraqi Freedom on 28 August 2008.  He subsequently served in Kuwait/Iraq from 2 November 2008 to 16 August 2009.  

3.  It appears at some stage the applicant entered the Army physical disability evaluation system (PDES).  On 18 October 2011, an informal physical evaluation board (PEB) convened and found his medical conditions of post-traumatic stress disorder, degenerative arthritis (knees and spine), plantar fasciitis (left and right), and elbow fracture prevented him from performing the duties required of his grade and specialty and determined he was physically unfit. 

4.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 90-percent combined disability rating.  The PEB recommended that the applicant be placed on the temporary disability retired list (TDRL).  He concurred with the PEB's finding and recommendation.

5.  On 7 December 2011, Headquarters, U.S. Army North (Fifth Army), TXARNG, Fort Sam Houston, TX, published Orders 341-0104 ordering his release from duty because of physical disability and placement on the TDRL in his retired rank/grade of SFC/E-7, effective 27 February 2012.  The standard name line listed his rank as "SSG."

6.  He was retired on 26 February 2012 by reason of physical disability and placed on the TDRL effective 27 February 2012.  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) "2006-04-15"

7.  An advisory opinion was obtained on 8 March 2013 from the National Guard Bureau (NGB) in the processing of this case.  An NGB official recommended approval and stated:

	a.  The applicant was placed on the retirement list effective 27 February 2012 by authority of Orders 341-0104, issued by Headquarters, U.S. Army North, Fort Sam Houston, TX.  This set of orders state his retired grade of rank is E-7; however, his DD Form 214 shows his rank as E-6.  

	b.  On or around 29 November 2011, the applicant was offered an E-7 slot from the Enlisted Promotion List.  He accepted.  The State promoted him to SFC/E-7; however, on 3 January 2012, the State revoked the offer because the applicant was due to retire.  His retirement was due to physical disability and he was placed on the TDRL. 

	c.  According to the Retirement Services Office at the NGB, the applicant should have retired as an E-7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states by law (Title 10, U.S. Code, section 1372) Soldiers on the 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.

	d.  The NGB recommends the Soldier receive full administrative relief in this case.  The NGB also recommends the U.S. Army North correct his DD Form 214 to reflect the appropriate pay and grade, or that the TXARNG is granted access to complete the required DD Form 215 to make adjustments.  It is also recommended that the State review the Soldier's NGB Form 22 to ensure it reflects a pay grade of E7 rather than E6.  The State concurs with this recommendation.

8.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

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:

The applicant was a promotable SSG/E-6 at the time of his disability processing and 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.  His retirement orders reflect the correct grade but his DD Form 214 does not.  Therefore, he is entitled to correction of his records to show he was promoted to SFC/E-7 with an effective date and date of rank of 26 February 2012.

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 deleting from items 4a, 4b, and 12i of his DD Form 214 the entries "SSG," "E-6," and "2006-04-15" and adding the entries "SFC," "E-7," and "2012-02-26" respectively.



      _______ _   _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)                                         AR20130000310





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ABCMR Record of Proceedings (cont)                                         AR20130000310



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