IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20130022188 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/pay grade of sergeant   (SGT)/E-5.

2.  The applicant states:

   a.  He was on the promotion list to SGT prior to being placed in the Warrior Transition Battalion (WTB) Integrated Disability Evaluation System (IDES) until 1 May 2013.  As result of disabilities incurred while serving his country he was unable to continue in his military occupational specialty (MOS) where he would have been promoted.

   b.  He enlisted in the Army on 1 May 2006 when he was 39 years of age and this was a great honor to him.  He is now a retired Soldier.  During the first five years of his service he received high performance evaluations and was promoted.  He was awarded the Iraq Campaign Medal with two bronze service stars, Army Commendation Medal, two awards of the Army Achievement Medal and Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and three Overseas Service Ribbons.  

   c.  He was hand-picked by the Command Sergeant Major to be the Vice President of the Better Opportunity for Single Soldiers (BOSS) for Ansbach at Storck Barracks.  This job is given to a noncommissioned officer (NCO) or an E-4 who shows the qualities of an NCO.  He was also appointed by his first sergeant to be the NCO-In-Charge of Barracks 6515, which he held for two years.  He performed all of the duties an NCO would perform in both of these capacities while leading Soldiers.  He served his country and his leaders faithfully and always held the Army Values first.

   d.  Due to his physical injuries he was unable to continue serving and was placed in the IDES on 28 December 2011 for medical processing from the Army. He signed and was carried on the promotion list until May 2013.  He requests to be promoted to the rank that was originally listed on his orders.  He served his country, his Army, gave his all, and was injured while serving and giving his all.  He is requesting to be retired at the rank he would have achieved if he were not limited by the disabilities.  It is very hard for a Soldier with limitations to continue at the level the Army desires.  With all the medications (causing sedation) he was taking he was unable to perform physical training like regular Soldiers.

3.  The applicant provides copies of the following:

* Enlisted Record Brief
* Two Memoranda for Record (MFR)
* Physical Evaluation Board Liaison Officer (PEBLO) IDES memorandum
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* three DA Forms 3349 (Physical Profile)
* Orders Number 180-01
* Medication Profile
* Physical Disability Information Report
* Orders Number 084-0002
* email correspondence for Behavioral Health (BH)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 214 Worksheet
* letter from the Department of Veterans Affairs (VA)
* Title 10, U.S. Code (USC), section 1372

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, in pay grade E-3, on 1 May 2006. He held MOS 15R (Attack Helicopter Repairer).  He was promoted to pay grade E-4 on 1 July 2009.  He served in Iraq from 31 July 2008 through 24 August 2009.

2.  His record contains and he provided, in part, copies of the following:

   a.  A Physical Disability Information Report, dated 19 March 2013, which shows he was separated on 28 May 2013, placed on the Retired List on 29 May 2013, and lists the following statutes authorizing retirement:
* Retired Grade – 1372
* Other Statutes Authorizing Retirement – 1201

   b.  Orders Number 084-0002, issued by the Installation Management Command – Europe, on 25 March 2013, retiring him due to physical disability and placing him on the Retired List effective 29 May 2013.  The orders list his retired rank as SGT.

3.  He was honorably retired on 28 May 2013, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of permanent (enhanced) disability.  His DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) – SPC
* Item 4b (Pay Grade) – E-4
* Item 12i (Effective Date of Pay Grade) – 1 July 2009

4.  He also provided copies of the following:

   a.  A letter from the VA, dated 28 August 2013, wherein he was advised of his award of a 100 percent combined rating for several service-connected disabilities.

   b.  Title 10, USC, section 1372, which 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:  

* the grade in which he/she is serving on the date when retired;
* the highest temporary grade in which he/she served satisfactorily;
* 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
* 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

   c.  An Enlisted Record Brief, dated 14 August 2012, which shows he was a promotable SPC as of July 2010.

5.  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 an 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, 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.
   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was a promotable SPC as of July 2010.  He was processed through the Army DES in May 2013 and it was determined his medical condition prevented satisfactory performance of duty in his grade and specialty and his retirement by reason of permanent disability was recommended.

2.  Orders were issued retiring him and placing him on the Retired List in the rank of SGT effective 29 May 2013.  He was issued a DD Form 214 showing the rank/pay grade of SPC/E-4.

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 the rank/pay grade of SGT/E-5, effective the day before his placement on the Retired List.

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 SGT/E-5 with an effective date and date of rank of 28 May 2013
* deleting from item 4a of his DD Form 214 the entry "SPC" and replacing it with the entry "SGT"
* deleting from item 4b of his DD Form 214 the entry "E-4" and replacing it with the entry "E-5"
* deleting from item 12i of his DD Form 214 the entry "2009-07-01" and replacing it with the entry "2013-05-28"



      _______ _   ___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)                                         AR20130022188





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ABCMR Record of Proceedings (cont)                                         AR20130022188



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