BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130003316 


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 record to show he was promoted to staff sergeant (SSG)/E-6 prior to his retirement by reason of disability. 

2.  The applicant states Army Regulation 600-8-19 (Enlisted Promotions and Reductions) allows such promotion. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders D308-16, dated 4 November 2010
* Orders 019-0147, dated 19 January 2006
* Enlisted Record Brief (ERB)

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 (RA) on 11 October 1995 and he held military occupational specialty 31B (Military Police).  He served through multiple reenlistments. 

3.  He was promoted to sergeant (SGT)/E-5 on 27 August 1999 and he served in Kuwait/Iraq from March 2003 to June 2003.

4.  It appears at some stage the applicant entered the Army physical disability evaluation system (PDES).  On 16 November 2005, 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 he was physically unfit. 

5.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 40-percent disability rating.  The PEB recommended placing him on the temporary disability retired list (TDRL).  He concurred.  

6.  Orders 019-0147, issued by Headquarters, III Corps, Fort Hood, on 19 January 2006 ordered his retirement effective 13 March 2006 and placement on the TDRL in the rank/grade of SGT/E-5, effective 14 March 2006. 

7.  He retired on 13 March 2006 and he was placed on the TDRL in his retired rank/grade of SGT/E-5 on 14 March 2006 by reason of physical disability.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) "SGT"
* item 4b (Pay Grade) "E-5"
* item 12i (Effective Date of Pay Grade) "1999-08-27"

8.  The applicant's ERB dated 19 January 2006 shows he was a promotable SGT with 471 promotion points as of March 2001 and 516 points as of May 2002.  There is no indication he was removed from the promotion list prior to his retirement. 

9.  He was considered by a TDRL PEB that recommended his permanent retirement.  

10.  D308-16, issued by the U.S. Army Physical Disability Agency on 4 November 2010 removed him from the TDRL on 4 November 2010 and permanently retired him in the rank/grade of SGT/E-5 on 5 November 2010. 
11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance for 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).

12.  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 PEB, references Army Regulation 600-8-19 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.  

13.  Headquarters, Department of the Army, Office of the Deputy Chief of Staff for Personnel, has clarified that the above policy is effective with the revised publication of Army Regulation 600-8-19 in January 2006.

14.  Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(c) of the version published on 10 January 2006 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 11 October 1995 to 13 March 2006. He was a promotable SGT/E-5 at the time of his retirement and placement on the TDRL in March 2006.  By law, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade and 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 as 13 March 2006 and correction of his DD Form 214 to show his SSG/E-6 rank and grade.  Additionally, he is entitled to back retired pay as a result of this correction.  


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 his 2006 retirement orders and issuing him retirement orders placing him on the TDRL in the rank/grade of SSG/E-6
* amending his DD Form 214 to show his rank/grade and effective date of pay grade as "SSG," "E-6," and "2006-03-13" respectively
* revoking his 2010 permanent retirement orders and issuing him retirement orders placing him on the retired list in the rank/grade of SSG/E-6
* 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)                                         AR20130003316





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ABCMR Record of Proceedings (cont)                                         AR20130003316



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