IN THE CASE OF:
BOARD DATE: 10 July 2014
DOCKET NUMBER: AR20130015758
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 that he be placed on the Retired List in the pay grade of E-7 and rank of platoon sergeant (PSG).
2. The applicant states that he took a voluntary administrative reduction from the pay grade of E-7 to the pay grade of E-6 in order to accept a position in the Maryland Army National Guard (MDARNG) and should have been retired in the pay grade of E-7, the highest grade he held.
3. The applicant provides copies of his National Guard Bureau Forms 22 (Report of Separation and Record of Service), promotion orders to E-7, a letter of recommendation, retirement orders, his VA Rating Decision, and his notice of disability retirement.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving in the Illinois Army National Guard (ILARNG) when he was promoted to the pay grade of E-7 on 6 January 1986.
2. On 10 July 1987, he was honorably discharged from the ILARNG.
3. On 29 September 2000, he enlisted in the MDARNG in the pay grade of E-6 and rank staff sergeant (SSG). He deployed to Iraq during the period 1 August 2007 to 13 April 2008.
4. On 7 July 2011, a Physical Evaluation Board (PEB) convened in Washington, D.C. determined that he was unfit for duty and recommended that he be retired by reason of permanent disability with a 100% disability rating. The applicant concurred with the findings and recommendations of the PEB.
5. On 9 November 2011, he was placed on the retired list in the pay grade of
E-6/SSG with a 100% disability rating. There is no evidence of a grade determination being made by the Army Grade Determination Review Board (AGDRB).
6. Paragraph 3-3 of Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) provides that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, Title 10, U.S. Code.)
7. Title 10, U.S. Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability. It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following:
a. the grade in which he is serving on the date when his name is placed on the Retired List;
b. the highest grade in which he served satisfactorily; or
c. the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.
DISCUSSION AND CONCLUSIONS:
1. By law, members of the Armed Forces being retired for disability are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served unless they are pending promotion to a higher grade. The evidence of record confirms the applicant held and satisfactorily served in the rank and pay grade of PSG/E-7.
2. In light of the applicants satisfactory service as a PSG/E-7, he should have been placed on the Retired List in that rank and pay grade at the time of his retirement due to permanent physical disability. Thus, it would be appropriate and serve the interest of justice and equity to correct the applicants record to show he was placed on the Retired List in the rank and pay grade of PSG/E-7 on 9 November 2011, and by providing him any back retired pay due as a result.
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 showing that he was placed on the Retired List in the rank and pay grade of PSG/E-7 on 9 November 2011, and by providing him any back retired pay due as a result.
_______ _ __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) AR20130015758
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ABCMR Record of Proceedings (cont) AR20130015758
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