IN THE CASE OF:
BOARD DATE: 27 March 2014
DOCKET NUMBER: AR20130008137
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) for the period ending 30 December 2012 to show his rank and pay grade as sergeant (SGT)/E-5.
2. The applicant states that according to Title 10, U.S. Code, section 1372, Soldiers being retired for disability who are on a promotion list will be promoted to the designated grade effective the day before placement on the Retired List. He should have been promoted to the rank and pay grade of SGT/E-5 before being retired.
3. The applicant provides:
* DD Form 214
* Military Personnel (MILPER) Message Number 13-106, dated 18 April 2013, subject: Enlisted Promotion Clarification for Soldiers in the Disability Evaluation System
* Page 7 of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
* Headquarters and Headquarters Company, Infantry Training Support Brigade, Fort Benning, GA, Recommended List for Promotion of Enlisted Personnel, dated 12 October 2011
CONSIDERATION OF EVIDENCE:
1. After having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 29 September 2004. Item 18f (Pay Grade) of his DD Form 1966 (Record of Military Processing Armed Forces of the United States), dated 28 September 2004, shows he enlisted in the rank and pay grade of specialist (SPC)/E-4.
2. A Recommendation List for Promotion of Enlisted Personnel, dated 12 October 2011, shows the applicant was recommended for promotion to SGT/E-5 in the primary zone.
3. Headquarters, U.S. Army Garrison, Fort Benning, GA, Orders 296-2228, dated 22 October 2012, retired the applicant by reason of physical disability in the rank of SPC effective 30 December 2012 and placed him on the Retired List effective 31 December 2012.
4. His DD Form 214 shows he retired on 30 December 2012 by reason of permanent disability. 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) 1 May 2012
5. An advisory opinion was obtained from the Chief, Department of the Army Promotions, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 15 August 2013, in the processing of this case. HRC recommended disapproval. The available records show the applicant had been on the promotion recommendation list since October 2009. He was reduced from SPC to private first class (PFC)/E-3 between December 2011 and January 2012. He was again advanced to SPC/E-4 on 1 May 2012. He did not regain his promotable status and was not entitled to a promotion.
6. On 10 September 2013, a copy of the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal. He did not respond.
7. Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.
a. Paragraph 1-20c provides that Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade under the provisions of Title 10, U.S. Code, section 1372. Further, the Soldier will be promoted to the designated grade effective the day before placement on the Retired List.
b. Table 3-10 shows reduction in grade as one of the reasons for removal from the recommended promotion list.
8. Title 10, U.S. Code, section 1372, states any member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to the highest of the following:
a. the grade in which he/she is serving on the date when retired;
b. the highest temporary grade in which he/she served satisfactorily;
c. the permanent Regular grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired; or
d. the temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired.
9. MILPER Message Number 13-106, dated 18 April 2013, essentially summarizes the regulatory and statutory guidance described in paragraphs 7 and 8 above.
DISCUSSION AND CONCLUSIONS:
1. When the applicant was reduced to PFC/E-3, he would have been removed from the promotion list. Although he was advanced to SPC/E-4 effective 1 May 2012, there is no evidence in the available records and he has not provided evidence showing his name was restored to the recommended list for promotion to SGT/E-5 after his reduction in rank. Therefore, his retirement orders and DD Form 214 correctly show his rank and pay grade as SPC/E-4.
2. In the absence of documentation showing he was on a valid promotion list at the time of his retirement, there is no basis for granting the relief he requests.
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 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.
ABCMR Record of Proceedings (cont) AR20130008137
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ABCMR Record of Proceedings (cont) AR20130008137
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