IN THE CASE OF:	  

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130016000 


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 retired as a sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6.

2.  The applicant states, in effect, that he was a promotable SSG/E-6 on an SFC/E-7 promotion standing list at the time of his retirement for disability and contends he should have been promoted to SFC/E-7 in accordance with Army policy.  Since then, he has been transferred to the Permanent Disability Retired List (PDRL) and after 3 years of arguing with the State of New Mexico, he received orders promoting him to SFC/E-7, effective 1 December 2008.

3.  The applicant provides State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 266-501, dated 23 September 2011.

CONSIDERATION OF EVIDENCE:

1.  As an SSG/E-6 in the New Mexico Army National Guard (NMARNG), the applicant served in Iraq from February 2004 to February 2005.

2.  His record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) which shows a PEB convened on 2 October 2008 at Fort Lewis, WA for the purpose of evaluating his medical condition.  Based on a review of the objective medical evidence of record, the PEB determined his medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  The PEB further determined he should be placed on the Temporary Disability Retired List (TDRL) because his condition was not sufficiently stable for final adjudication.

3.  Orders D302-04, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, dated 28 October 2008, placed the applicant on the TDRL with a scheduled separation date of 2 December 2008.  On 2 December 2008, he was placed on the TDRL in the rank/grade of SSG/E-6.

4.  His National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) shows he was retired on 2 December 2008 by reason of temporary disability.  His NGB Form 22 shows in:

	a.  Item 5a (Rank) rank as SSG;

	b.  Item 5b (Pay Grade) his pay grade as E-6; and

	c.  Item 6 (Date of Rank) his date of rank (DOR) as 18 November 2003.

5.  His record contains a DA Form 199 which shows an informal PEB convened on 23 August 2011 at Fort Lewis, WA for the purpose of reevaluating and reconsidering his medical condition.  Based on a review of the objective medical evidence of record, the PEB determined his medical condition had no improved to the extent that he was fit for duty.  The PEB noted that although some change in his medical condition could be anticipated, for the purpose of adjudication his disability compensation his conditions were considered to have stabilized sufficiently for final adjudication.  As a result, permanent retirement was recommended.  Therefore, the DA Form 199, dated 8 July 2011 (not available for review), was superseded and replaced by this DA Form 199.  The applicant concurred with this finding and recommendation on 25 August 2011.

6.  Order 266-27, issued by the USAPDA, Washington, DC, dated 23 September 2011, removed the applicant from the TDRL on 23 September 2011 due to permanent disability and permanently retired him effective 23 September 2011.  This order shows his rank/grade as SSG/E-6.

7.  State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 266-501, dated 23 September 2011, retroactively promoted the applicant from SSG/E-6 to SFC/E-7 with an effective date and DOR of 1 December 2008.  The additional instructions portion of these orders contains the following statement, "Soldier is assigned to the Temporary Disability Retired List (TDRL), effective 2 December 2008."

8.  A review of the interactive Personnel Management System (iPERMS) database maintained by the U.S. Army Human Resources Command shows the applicant's rank/grade is currently reflected as SSG/E-6.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states in:

	a.  Paragraph 1-20a, that Soldiers who are pending referral to a military occupational specialty (MOS)/medical retention board (MMRB) under Army Regulation 600–60 (Physical Performance Evaluation System) or referral to a medical evaluation board (MEB) under Army Regulation 40–400 (Patient Administration) or PEB under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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, 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.

10.  Title 10, U.S. Code, section 1372, states any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL, is entitled to the grade equivalent to the highest of the following:  

	a.  the grade in which he/she is serving on the date when his/her name was placed on the TDRL or on the date when retired;

	b.  the highest temporary grade in which he/she served satisfactorily;

	c.  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; or

	d.  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 October 2008 it was determined the applicant’s medical condition prevented satisfactory performance of duty in his grade and specialty and he was placed on the TDRL as an SSG/E-6.
2.  The applicant was in a promotable status on 2 December 2008 when he was retired and placed on the TDRL.

3.  His NGB Form 22 currently shows he was retired due to temporary disability in the rank/pay grade of SSG/E-6 with an effective date of promotion of 18 November 2003.

4.  Title 10, U.S. Code, section 1372, states any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL 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.

5.  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.  

6.  Although State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 266-501, dated 23 September 2011, retroactively promoted the applicant to SFC/E-7 with an effective date and DOR of 1 December 2008, the database was never corrected to reflect his proper rank/grade at the time he was placed on the TDRL and then subsequently on the PDRL.

7.  In view of the foregoing, the applicant is entitled to correction of his NGB Form 22 to show he was promoted to SFC/E-7 with an effective date and date of rank of 1 December 2008.  

8.  It would also be appropriate to amend Orders D302-04, dated 28 October 2008, to show his retired rank/grade as SFC when he was placed on the TDRL; and to amend Order 266-27, dated 23 September 2011, to show his retired rank/grade as SFC when he was placed on the PDRL.  He is also entitled to any back retired pay due as a result of these corrections.

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, National Guard, and State records of the individual concerned be corrected by:

	a.  correcting all databases to show he was promoted to the rank/grade of SFC/E-7 with an effective date and DOR of 1 December 2008;

	b.  deleting from item 5a of his NGB Form 22 the entry "SSG" and replacing it with the entry "SFC";

	c.  deleting from item 5b of his NGB Form 22 the entry "E6" and replacing it with the entry "E7";

	d.  deleting from item 6 of his NGB Form 22 the entry "03 11 18" and replacing it with the entry "08 12 01";

	e.  amending Orders D302-04, dated 28 October 2008, to show his retired rank/grade as SFC/E-7 when he was placed on the TDRL;

	f.  amending Order 266-27, dated 23 September 2011, to show his retired rank/grade as SFC/E-7 when he was placed on the PDRL; and

	g.  paying him all back pay and allowances/retired pay due as a result of these corrections.



      _______ _   __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)                                         AR20130016000





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ABCMR Record of Proceedings (cont)                                         AR20130016000



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