IN THE CASE OF:	  

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130018415 


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 records to show he was promoted to sergeant (SGT)/E-5.  

2.  He states he was on the SGT Enlisted Promotion List before he retired and while in the process of retirement, he was not promoted to the next higher grade.  He was retired in the rank/grade of specialist (SPC)/E-4.  

3.  He provides:

* Orders D227-12, dated 14 August 2012
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* SGT Enlisted Promotion Board Fiscal Year (FY) 2012 (M-Day Soldiers) partial list (M-Day is slang for man-days.  It refers to regular weekend drilling Soldiers)
* Defense Finance and Accounting Service (DFAS) Retiree Account Statements
* Orders 243-523, dated 30 August 2012
* Memorandum, subject: Permanent Physical Disability Retirement, dated 14 August 2012
* DA Form 199 (Physical Evaluation Board (PEB)) Proceedings, dated
2 July 2012
* Letter from the Department of Veteran Affairs, dated 8 June 2012
* Army National Guard (ARNG) Retirement Points History Statement, dated 10 October 2012
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 29 November 1990.

2.  He was promoted to SPC/E-4 on 19 January 1994.

3.  His Medical Evaluation Board Proceedings are not available.  

4.  He provided the following documents:

	a.  A DA Form 199, dated 2 July 2012, shows an informal PEB determined he was physically unfit for retention due to adhesive capsulitis, right shoulder secondary to bursitis; lumbosacral strain described as lumbosacral myositis; and right ulnar ligament rupture.  The PEB recommended the applicant be retired due to permanent disability with a combined disability rating of 40 percent.  His PEB findings show his rank as SPC.

   b.  Orders D227-12, dated 14 August 2012, published by the U.S. Army Physical Disability Agency, show he was released from assignment and duty because of permanent physical disability and he was placed on the retired list on 18 September 2012, in pay grade E-4.

   c.  Orders 243-523, dated 30 August 2012, show he was discharged from the ARNG and assigned to the Retired Reserve, effective 17 September 2012.  

   d.  A partial listing of the SGT Enlisted Promotion Board FY12 (M-Day Soldiers) shows he was recommended for promotion to SGT with a score of 263 in military occupational specialty 11B (Infantryman).

   e.  Three Retiree Account Statements with new pay due on 30 November 2012 show his rank is listed as SP4.

   f.  An NGB Form 22 shows he was discharged from the PRARNG on 17 September 2012 in the rank/pay grade of SPC/E-4 with date of rank as 
19 January 1994.

5.  On 6 February 2014, an advisory opinion was received from the Chief, Personnel Policy Division, NGB who recommended approval of the applicant's request and stated:

a. The applicant is eligible to be promoted according to Army Regulation 
600-8-19 (Enlisted Promotions and Reductions), dated 30 April 2010.
	b.  According to the applicant, he would have been promoted to SGT because he was on the promotion list at the time of his medical retirement.  The list he was on is the order of merit list (OML) for all SPC's within his State who are eligible for promotion.  The applicant's name was on the list because he turned in an NGB Form 4100 (Enlisted Promotion Point Worksheet).  The purpose of this form is to determine the Soldier's eligibility for promotion and validate the points granted.

	c.  The ARNG uses a vacancy promotion system to promote Soldiers.  Army Regulation 600-8-19, chapter 1-20, paragraph c states that a Soldier on a promotion list at the time of retirement for disability will be retired at the promotion list grade effective the day before placement on the retired list.

	d.  The applicant was on the promotion list and he was retired for a disability. He should have been promoted to SGT the day before he was placed on the retired list.  According to his retirement orders, he was placed on the retired list on 18 September 2012.  Therefore, he should have been promoted to SGT on 
17 September 2012.

	e.  The State of Puerto Rico concurs with this recommendation.

6.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments; however, he did not respond within the allotted timeframe.  

7.  Army Regulation 600-8-19 states promotable Soldiers separated for disability will be promoted the day before separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was medically retired on 17 September 2012 and he was placed on the retired list in the rank of SPC on 18 September 2012.  

2.  The evidence of record shows the applicant was on the OML for promotion to SGT at the time he was medically retired on 17 September 2012.  However, he was placed on the retired list in the rank/pay grade of SPC/E-4.

3.  Since the applicant was in a promotable status at the time he was separated for disability, he should have been promoted on 17 September 2012, the day before he was placed on the retired list.



4.  Therefore, it would be appropriate to promote him retroactively; amend his NGB Form 22 and retirement Orders D227-12, dated 14 August 2012, to show his rank and pay grade as SGT/E-5; and pay him all entitlements 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 State Army National Guard and Department of the Army records of the individual concerned be corrected by:

   a.  retroactively promoting him to SGT/E-5, effective 17 September 2012 and amending his NGB Form 22 appropriately;
   
	b.  amending Orders D227-12, dated 14 August 2012, to show his retired rank/grade as SGT/E-5; and 

	c.  providing him all pay and allowances and retired pay due as a result of the above 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)                                         AR20130018415



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ABCMR Record of Proceedings (cont)                                         AR20130018415



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