IN THE CASE OF:	  

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130013155 


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 retired 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 not promoted to SSG due to a medical evaluation board (MEB).  He made the cut-off score as stated in Army Regulation 600-8-19 (Enlisted Promotions and Reductions), but his DD Form 214 does not reflect the corrected rank/grade.  He was a promotable SGT and getting ready to be promoted.  Unfortunately, his unit did not promote him to SSG because he was pending an MEB.  He was medically retired in the lower grade without the benefit of a review by the Army Grade Determination Review Board.

3.  The applicant provides:

* DA Form 3355 (Promotion Point Worksheet)
* Promotion Board Proceedings for Promotion to SGT/SSG
* DA Forms 3356 (Board Member Appraisal Worksheets)
* memorandum of responsibility for promotion consideration
* Army Times announcement of Soldiers recommended for promotion to SSG by name


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 7 June 2002 and he held military occupational specialty (MOS) 11B (Infantryman).

2.  He served in Afghanistan from 20 January 2003 to 15 August 2003.  He also served in Kuwait/Iraq from 10 January 2004 to 14 May 2004.  He reenlisted on 16 May 2005.  He was promoted to SGT effective 1 July 2006.  He served in Kuwait/Iraq again from 1 November 2006 to 13 December 2007.

3.  On 3 June 2008, he appeared before the 1st Battalion, 77th Armor, semi-centralized promotion board at Fort Bliss, TX.  He was recommended for promotion to SSG and his name was incorporated into the Promotion Standing List with 498 total points.

4.  It appears he entered the Army Physical Disability Evaluation System at some stage.  A physical evaluation board (PEB) convened on 6 November 2008 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 70-percent combined disability rating.  The PEB recommended his placement on the Temporary Disability Retired List (TDRL).

6.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders 350-0018, dated 15 December 2008, retired him in the rank of SGT effective 6 February 2009 because of physical disability and placed him on the TDRL effective 7 February 2009.

7.  His DD Form 214 shows he was honorably retired by reason of physical disability on 6 February 2009 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  He completed 6 years and 8 months of creditable active service.

8.  His DD Form 214 also shows in:

* item 4a (Grade, Rate, or Rank) – SGT
* item 4b (Pay Grade) – E-5
* item 12i (Effective Date of Pay Grade) – 1 July 2006

9.  He provided a copy of the Army Times, undated, announcing the Soldiers recommended for promotion to SSG by name together with the cutoff scores for July (presumably 2008) showing the cutoff score for MOS 11B as 450 in the primary and secondary zones.

10.  On 25 January 2012, he underwent a TDRL PEB that recommended a disability rating of 30 percent and permanent retirement.

11.  U.S. Army Physical Disability Agency Order 039-06, dated 8 February 2012, removed him from the TDRL effective 8 February 2012 and permanently retired him in the rank of SGT by reason of permanent disability.

12.  An advisory opinion was received from the U.S. Army Human Resources Command (HRC) Junior Enlisted Promotions Section, dated 22 August 2013, together with a revised advisory opinion, dated 20 March 2014, in the processing of this case.  HRC recommended approval and stated a review of the applicant's available records indicates he was promotable at the time of separation.  In accordance with Army Regulation 600-8-19, paragraph 1-20, a Soldier who is pending referral to the MOS Medical Retention Board under Army Regulation 600-60 (Physical Performance Evaluation System), or to an MEB under Army Regulation 40-400 (Patient Administration), or to a PEB under Army Regulation 635-40 will not be denied promotion (if already promotable) on the basis of medical qualification.  His DD Form 214 will be corrected to show his rank, grade, and effective date of pay grade as 6 February 2009.  The applicant was ineligible for promotion on 1 July 2008 because he did not meet the 12-month service remaining requirements in accordance with Army Regulation 600-8-19, paragraph 3-34.

13.  The applicant was furnished with a copy of the advisory opinion and the revised opinion.  He responded by email, dated 27 March 2013, through a Wounded Warrior Program advocate; however, his response did not contain anything.

14.  On 20 November 2013, HRC issued a DD Form 215 (Correction to DD Form 214) amending the applicant's retired rank/grade from SGT/E-5 to SSG/E-6 and his effective date of pay grade to 6 February 2009.

15.  An email from the Defense Finance and Accounting Service, dated 6 March 2013, confirmed the applicant is receiving retired pay at the grade of E-5.

16.  Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(c) states that under 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.

17.  Title 10, U.S. Code, section 1372 (Grade on Retirement Physical Disability, Members of the Armed Forces), states that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

* the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired
* the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination
* the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 7 June 2002 through 6 February 2009.  He was a promotable SGT/E-5 at the time of his disability retirement.  By law, 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.

2.  While his DD Form 214 has been corrected to show his correct rank/grade and effective date of pay grade, his retirement orders still do not reflect the correct retirement rank/grade.  Therefore, the applicant is entitled to correction of his records to show he was placed on the TDRL in the retired rank/grade of SSG/E-6 vice SGT/E-5 effective 7 February 2009 with entitlement to back retired pay.

3.  The applicant was considered by a TDRL PEB that recommended his permanent retirement.  He was removed from the TDRL on 8 February 2012 and he was permanently retired in the grade of SGT/E-5.  He should be entitled to correction of his records to show he was permanently retired in the grade of E-6 vice E-5 effective 8 February 2012.

4.  Although the applicant did not request a specific date of promotion, his submission of the Army Times cutoff scores indicates he believed he was entitled to an earlier promotion to SSG.  The applicant did not meet the 12-month service remaining requirements of Army Regulation 600-8-19 for an earlier promotion.  Likewise, there is insufficient evidence to show the applicant was eligible for promotion earlier than 6 February 2009.

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:

* amending Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders 350-0018, dated 15 December 2008, to show his retired grade of rank as "SSG" vice "SGT" effective 7 February 2009
* amending U.S. Army Physical Disability Agency Order 039-06, dated 
8 February 2012, to show his rank as “SSG” in the standard name line
* paying him any adjusted 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)                                         AR20130013155



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ABCMR Record of Proceedings (cont)                                         AR20130013155



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