BOARD DATE: 5 December 2013
DOCKET NUMBER: AR20130004736
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 that he be retired in the pay grade of E-7.
2. The applicant states that he was promoted to the pay grade of E-7 on
31 December 1999 and served in that pay grade until he was reduced to the pay grade of E-6 on 14 May 2002 due to non-completion of the Noncommissioned Officer Education System (NCOES) Advanced NCO Course (ANCOC). He was told while on medical hold that he would be retired in the highest grade held but he was retired at the pay grade of E-6 instead of E-7.
3. The applicant provides copies of his promotion and reduction orders.
CONSIDERATION OF EVIDENCE:
1. On 4 December 1999, while the applicant was serving as a U.S. Army Reserve (USAR) military policeman in the pay grade of E-6, orders were published promoting the applicant to the pay grade of E-7 effective 31 December 1999. The orders specified the following conditions of his promotion:
* The promotion is awarded with the condition the Soldier must be enrolled in, and successfully complete, the NCOES course required for the grade to which promoted
* The Soldier understands and agrees that if he or she fails to meet these conditions, or is subsequently denied enrollment or becomes an academic failure, or does not meet graduation requirements, or is declared a NO-SHOW, the Soldier is subject to reduction under Army Regulation 140-158, paragraph 7-12d, to the grade and rank held prior to this promotion
* The Soldier further understands that if reduced, service performed in the higher grade will not be considered in determining retirement grade, date of rank, or any other determinations dependent on the higher grade
2. On 14 May 2002, orders were published by the 93rd Regional Support Command that reduced the applicant to the pay grade of E-6 in accordance with Army Regulation 140-158, paragraph 7-12 (d-g).
3. On 29 July 2005, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
4. On 13 April 2009 he was ordered to active duty in support of Operation Iraqi Freedom and he deployed to Iraq during the period 20090615 20100210.
5. On 28 July 2012, he was honorably retired by reason of temporary disability with a 70% disability rating and was placed on the Temporary Disability Retired List (TDRL) in the pay grade of E-6 by reason of Disability, Temporary (Enhanced).
6. Army Regulation 15-80 establishes policies, procedures and responsibilities of the Army Grade Determination Review Board (AGDRB). It provides, in pertinent part, that the AGDRB will make final discretionary grade determinations on behalf of the Secretary of the Army for enlisted Soldiers at the time of separation. A grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. Generally, a determination will be based on the Soldiers overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay or separation for physical disability.
7. Title 10, U.S. Code, section 1372, Grade on Retirement for Physical Disability; Members of the Armed Forces, provides, in pertinent part, that any member of an armed force who is retired for physical disability or whose name is placed on the TDRL under section 1202 or 1205 of this title is entitled to the highest temporary grade or rank in which they served satisfactorily, as determined by the Secretary of the armed force from which they served.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should have been placed on the Retired list in the pay grade of E-7 has been noted and appears to lack merit.
2. At the time he accepted the promotion to the pay grade of E-7, he did so under the conditions that the promotion would be valid only if he completed the NCOES course required for his grade and there is no evidence in the available records to show otherwise. There is also no evidence to show that he disputed the fact that he did not complete the NCOES course requirements.
3. Additionally, the applicant also accepted the conditions of his promotion specifying that if he was reduced for failure to meet the conditions of his promotion, service performed in the higher grade will not be considered in determining retirement grade, date of rank, or any other determinations dependent on the higher grade. In other words, his service as an E-7 would not be considered satisfactory service in a higher grade.
4. Accordingly, he was properly placed on the TDRL in the pay grade of E-6, the highest grade in which he satisfactorily served in while on active duty.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x__ ___x_____ ___x_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
_______ _ 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.
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