IN THE CASE OF:	

		BOARD DATE:	 8 May 2014 

		DOCKET NUMBER:  AR20130014758 


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 promotion to the rank/pay grade of staff sergeant (SSG)/E-6 and placement on the retired list in that grade.

2.  The applicant states:

   a.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20 and Military Personnel (MILPER) Message 09-06, he met all the requirements, he was eligible, and he was advised that he would be promoted to SSG on 20 May 2013.  He continually followed-up and monitored this issue and applied due diligence in an attempt to avoid being in this situation.

   b.  He finally received his promotion orders on 5 June 2013 over three months after advising the brigade of this action.  All of his documents have his retired grade as sergeant (SGT)/E-5.  He was advised while clearing his installation that the amended orders would be published prior to his separation.  Having separated from the Army on 22 May 2013 he knows he was not in an active duty status and the brigade was unable to correct their mistake.

3.  The applicant provides copies of Orders Number 058-0200; Orders Number 141-001; DD Form 214 (Certificate of Release or Discharge from Active Duty); and email correspondence between himself and a staff member of the Promotion/Soldier Records, Military Personnel Division, Fort Wainwright, AK. 



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 21 September 2006.  He held military occupational specialty 42A (human resources specialist).  He was promoted to SGT/E-5 on 1 November 2007.  He reenlisted in the RA on 19 February 2008.  

2.  His record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) which shows a formal PEB convened on 11 February 2013 for the purpose of evaluating his medical condition.  The PEB determined his medical and physical impairment prevented reasonable performance of duties required by his grade and specialty.  The PEB further determined he should be retired for permanent disability rated at 30 percent.

3.  He provided copies of the following:

   a.  Orders Number 058-0200, dated 27 February 2013, reassigning him for separation processing for retirement because of physical disability.  The orders stated his effective date of retirement would be 21 May 2013 and he would be placed on the retired list in the grade of SGT.

   b.  Orders Number 141-001, issued by Headquarters, 1st Battalion, 25th Stryker Brigade Combat Team, dated 21 May 2013, promoting him to SSG/E-6 with a date of rank and effective date of 22 May 2013.  The orders stated the promotion was not valid and that order would be revoked if he was not in a promotable status on the effective date of promotion.

4.  He was honorably retired on 21 May 2013, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), by reason of permanent disability.  His DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) – SGT
* Item 4b (Pay Grade) – E-5
* Item 12i (Effective Date of Pay Grade) – 1 November 2007

5.  He also provided copies of email correspondence between himself and the Promotion/Soldier Records, Military Personnel Division, Fort Wainwright, AK, dated between 6 May and 5 June 2013, and pertaining to his E-6 promotion orders and placing him back in the brigade for completing his promotion prior to his retirement.  

6.  Army Regulation 600-8-19 sets the enlisted promotions and reductions function of the military personnel system.  The regulation states in:

   a.  Paragraph 1-20a - Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board under Army Regulation 40-400 (Patient Administration) or referral to a medical evaluation board (MEB) or a PEB under Army Regulation 635-40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

   b.  Paragraph 1-20c - Per the provisions of Title 10, U.S. Code (USC), 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.

7.  MILPER Message 09-067, issued 25 March 2009, essentially summarizes the regulatory and statutory guidance pertaining to Army Regulation 600-8-19, Title 10, USC, sections 1212 and 1372.

8.  Title 10, USC, section 1372, specifies any member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to the highest of the following:  

	(1)  the grade in which he/she is serving on the date when retired;

   (2)  the highest temporary grade in which he/she served satisfactorily;
   
   (3)  the permanent regular grade to which he/she would have been promoted had it not for the physical disability for which he/she is retired; or
   
   (4)  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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in February 2013 it was determined the applicant’s medical condition prevented satisfactory performance of duty in his grade and specialty and his retirement for permanent disability was recommended.

2.  He was in a promotable status on 21 May 2013 when he was retired.  His DD Form 214 currently shows he was retired due to permanent disability in the rank/pay grade of SGT/E-5 with an effective date of promotion of 1 November 2007.

3.  Title 10, USC, section 1372, states any member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to 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.

4.  Army Regulation 600-8-19, paragraph 1-20a, states Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted to the designated grade effective the day before placement on the retired list.  

5.  In view of the foregoing, he is entitled to correction to his DD Form 214 to show he was promoted to SSG/E-6 with an effective date and date of rank of 21 May 2013, with entitlement to payment of all back pay and allowances due as a result of this correction.

6.  It would also be appropriate to amend Orders 058-0200, dated 27 February 2013, to show his retired grade of rank as SSG.  He is also entitled to any back retired pay due as a result of this correction.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 the applicant to the rank/grade of SSG/E-6 with an effective date and date of rank of 21 May 2013
* deleting from item 4a of his DD Form 214 the entry "SGT" and replacing it with the entry "SSG"
* deleting from item 4b of his DD Form 214 the entry "E-5" and replacing it with the entry "E-6"
* deleting from item 12i of his DD Form 214 the entry "20007-11-01" and replacing it with the entry "2013-05-21"
* amending Orders 058-0200, dated 27 February 2013, to read "Retired grade of rank:  SSG
* paying him all back pay and allowances/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)                                         AR20130014758





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ABCMR Record of Proceedings (cont)                                         AR20130014758



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