IN THE CASE OF:
BOARD DATE: 4 February 2014
DOCKET NUMBER: AR20130008774
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 was discharged by reason of disability in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5.
2. The applicant states he was a promotable E-5 with 16 years of active service.
He was medically discharged with entitlement to severance pay. He was paid severance pay at the rate of pay grade E-5. He should have been authorized severance pay at the rate of pay grade E-6 as stipulated in law and regulation.
3. The applicant provides:
* DD Form 214
* extract of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
* discharge orders
* Recommended List for Promotion of Enlisted Personnel
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army on 7 November 1996 and he held military occupational specialty 25U (Signal Support Systems Specialist).
2. He served through multiple reenlistments in a variety of assignments, including in Iraq from 11 January 2004 to 5 January 2005, and he was promoted to SGT/E-5 on 1 January 2005.
3. It appears at some stage he entered the Army Physical Disability Evaluation System. A 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.
4. He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 20-percent combined disability rating. The PEB recommended the applicant's separation with entitlement to severance pay, if otherwise qualified.
5. On 26 November 2012, Headquarters, U.S. Army Garrison, Fort Knox, KY, published Orders 331-0154 ordering his discharge because of physical disability in the rank/grade of SGT/E-5 effective 31 January 2013. The standard name line listed his rank as "SGT." However, the additional instructions read:
You are authorized disability severance pay in pay grade E06 based on 16 years, 2 months, and 24 days of service as computed [under Title 10, U.S. Code, section 1208].
6. He was discharged on 31 January 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability with severance pay. His DD Form 214 shows in:
* Item 4a (Grade, Rate or Rank) "SGT"
* Item 4b (Pay Grade) "E05"
* Item 12i (Effective Date of Pay Grade) "2005 01 01"
7. The applicant provided a document titled, "Recommended List for Promotion of Enlisted Personnel," dated 10 December 2012, that lists his name as a promotable SGT.
8. An advisory opinion was obtained on 10 June 2013 from the U.S. Army Human Resources Command (HRC) Promotions Branch in the processing of this case. HRC recommended approval of the applicant's request.
9. The applicant was provided with a copy of this advisory opinion, but he did not respond.
10. Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers. Paragraph 1-20(d) of the version published on 30 April 2010 states that under the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective on the Soldier's separation date.
DISCUSSION AND CONCLUSIONS:
1. The applicant served on active duty from 7 November 1996 through 31 January 2013. He was a promotable SGT/E-5 at the time of his disability discharge. By law, at the time he was separated Soldiers on a promotion list at the time of separation for disability with entitlement to disability severance pay would be paid such compensation at the promotion list grade. Further, the Soldier would be promoted to the designated grade effective on the Soldier's separation date.
2. Contrary to his argument that he was paid severance pay at the grade of E-5, the discharge orders clearly stated, "You are authorized disability severance pay in pay grade E06 based on 16 years, 2 months, and 24 days of service as computed [under Title 10, U.S. Code, section 1208]." If the applicant believes the amount of severance pay he received is incorrect, he is advised to address the pay issue with officials at the Defense Finance and Accounting Service.
3. However, the applicant should have been promoted to SSG/E-6 on the date of his discharge and his DD Form 214 should have listed his higher grade. Therefore, he is entitled to that promotion and to correction of his DD Form 214 to show his rank and pay grade as SSG/E-6.
BOARD VOTE:
____X___ ____X___ ___X__ _ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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:
* promoting him to SSG/E6 effective 31 January 2013 and paying him any pay and allowances due as a result of this correction
* deleting the entries "SGT" and E-5" from items 4a and 4b of his DD Form 214 and adding the entries "SSG" and "E-6," respectively
* deleting the entry "2005 01 01" from item 12i of his DD Form 214 and adding the entry "2013 01 31"
_________________________
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) AR20130008774
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