IN THE CASE OF:	

		BOARD DATE:	    16 January 2014

		DOCKET NUMBER:  AR20130008727 


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 record to show he was promoted to the rank/grade of sergeant (SGT)/E-5 prior to placement on the Temporary Disability Retired List (TDRL). 

2.  The applicant states he was on the recommended list for promotion to SGT prior to his separation.  Therefore, he should have been placed on the TDRL in the rank of SGT in accordance with Army regulation.

3.  The applicant provides:

* DA Form 2339 (Application for Voluntary Retirement)
* Enlisted Record Brief (ERB)
* a memorandum, subject:  Grade Determination Request (applicant's name), dated 5 November 2012
* 2 pages of a Recommended List for Promotion of Enlisted Personnel, as of 5 October 2012
* DD Form 214WS (Certificate of Release or Discharge from Active Duty - Worksheet)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 050-0017, issued by Headquarters, Third Infantry Division, Fort Stewart, dated 19 February 2013


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 21 May 2007.  He completed training and he was awarded military occupational specialty 92W (Water Treatment Specialist).  On 26 June 2009, he reenlisted in the RA for a period of 5 years in the rank/grade of private first class (PFC)/E-3.

2.  The applicant's record shows he served in Iraq in support of Operation Iraqi Freedom (OIF) from 8 December 2008 to 26 November 2009.

3.  His record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 15 October 2010, that shows while in the rank/grade of specialist (SPC)/E-4, he achieved the course standards at the Petroleum Supply Specialist Course at Fort Lee, VA.

4.  The applicant provides and his record contains Orders 050-0017, dated
19 February 2013, that show he was to be released from assignment because of physical disability incurred while entitled to basic pay and under conditions that permitted him to be placed on the TDRL effective 27 March 2013 in the rank/grade of SGT/E-5.

5.  His record also contains:

	a.  Orders 085-0012, issued by Headquarters, Third Infantry Division, Fort Stewart, dated 26 March 2013, that revoked Orders 050-0017, dated
19 February 2013.

	b.  Orders 094-0006, issued by the same headquarters, dated 4 April 2013, that show he was to be released from assignment because of physical disability incurred while entitled to basic pay and under conditions that permitted him to be placed on the TDRL effective 27 June 2013 in the rank/grade of PFC/E-3.

	c.  DD Form 93 (Record of Emergency Data) completed by the applicant on
16 April 2013 that shows his rank as PFC.

   d.  SGLV 8286 (Servicemembers' Group Life Insurance Election and Certificate) completed by the applicant on 16 April 2013.  This document also shows his rank as PFC.

6.  His DD Form 214 shows he was retired on 27 June 2013 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 


Separation), paragraph 4, by reason of temporary physical disability.  He completed 6 years, 1 month, and 7 days of creditable active service.  His DD Form 214 further shows in:

* item 4a (Grade, Rate or Rank) "PFC"
* item 4b (Pay Grade) "E03"
* item 12h (Effective Date of Pay Grade) "2013  01  17"

7.  The applicant provides:

	a.  A copy of a Recommended List for Promotion of Enlisted Personnel, dated 5 October 2012, that shows his rank as SPC in the primary zone for promotion consideration to SGT.

	b.  A memorandum from the U.S. Army Medical Department Activity, Fort Stewart, Physical Evaluation Board (PEB) Liaison Officer to the President of the PEB, dated 5 November 2012, that shows the applicant requested a grade determination.

	c.  An ERB, dated 18 January 2013, that shows he was promotable to the rank of SGT effective July 2011.

	d.  DD Form 214WS that indicates he was to be retired and placed on the TDRL on 27 March 2013 in the rank/grade of SGT/E-5.

8.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant’s pay grade as follows:

* E-4 from 1 September 2009 through 16 January 2013
* E-3 from 17 January 2013 through 27 June 2013

9.  DFAS further confirmed the applicant was retired on 27 June 2013 by reason of temporary disability in the grade of E-3.

10.  Army Regulation 600-8-19 (Enlisted Promotions) prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel. 
Paragraph 1-20 (Promotion of Soldiers Pending Referral to an MOS Medical Retention Board, Medical Evaluation Board, or PEB) provides that 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.


11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  This regulation states that the Soldier's active duty grade or rank and pay grade at the time of separation would be entered in item 4a and item 4b of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he was promoted to the rank/grade of SGT/E-5 prior to placement on the TDRL has been carefully examined; however, there is insufficient evidence to support the applicant's request.

2.  Army Regulation 600-8-19, paragraph 1-20, provides that 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.  Although the applicant provides evidence that shows he was in the primary zone for promotion consideration to SGT presumably as late as January 2013, there is ample evidence to show the applicant's rank as PFC with a date of rank of
17 January 2013 prior to his retirement date.

3.  Furthermore, the supporting regulation states that a Soldier's active duty grade or rank and pay grade at the time of separation would be entered in item 4a and item 4b of the DD Form 214.  Based on the entry in item 12h of his DD Form 214, the evidence appears to indicate the applicant may have been reduced to PFC/E-3 on 17 January 2013.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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.

ABCMR Record of Proceedings (cont)                                         AR20130008727



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ABCMR Record of Proceedings (cont)                                         AR20130008727



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