IN THE CASE OF:
BOARD DATE: 9 December 2014
DOCKET NUMBER: AR20140003115
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 his retirement rank/grade as staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5.
2. The applicant states he provides a C-10 that confirms he was promotable at the time of his retirement.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Email communication (3 pages)
* Recommended List for Promotion of Enlisted Personnel
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he initially enlisted in the Regular Army (RA) on 28 May 1996 and served until he was discharged on 2 October 2008, in the rank of SGT. His DD Form 214 shows he completed 12 years, 4 months, and 5 days of creditable active duty service.
2. On 4 March 2009, the applicant again enlisted in the RA in the rank and grade of SGT/E-5 with a date of rank of 4 March 2009. He served in military occupational specialty 31B (Military Police).
3. It appears at some stage he entered the Army Physical Disability Evaluation System. A physical evaluation board (PEB) convened and found his medical conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.
4. He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 50-percent combined disability rating. The PEB recommended the applicant be retired from active duty.
5. On 28 January 2013, Department of the Army, Installation Management Command-Europe, Stuttgart Transition Center, published Orders 028-0002, ordering his release from assignment by reason of physical disability in the rank/grade of SGT/E-5 effective 28 March 2013 and his placement on the retired list the day following on 29 March 2013. The standard name line listed his rank as "SGT."
6. He was retired on 28 March 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of permanent physical disability. His DD Form 214 shows in:
* Item 4a (Grade, Rate or Rank) "SGT"
* Item 4b (Pay Grade) "E05"
* Item 12i (Effective Date of Pay Grade) "2009 03 04"
7. The applicant provided a document titled, "Recommended List for Promotion of Enlisted Personnel," dated 10 March 2013, that lists his name as a promotable SGT.
8. The applicant's Defense Finance and Accounting Service (DFAS) record confirms he is currently being paid in the rank of SGT/E-5.
9. Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers. Paragraph 1-20(c) of the version published on 30 April 2010 states that under 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant was a promotable SGT/E-5 at the time of his retirement from active duty by reason of permanent disability. By law, at the time he was separated, 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 would be promoted to the designated grade effective the day before placement on the retired list.
2. Based on the forgoing, the applicant should have been promoted to SSG/E-6 on the date of his retirement and his DD Form 214 should have listed his higher grade. Therefore, he is entitled to that promotion and to correction of his DD Form 214 to show his rank and pay grade as SSG/E-6.
3. Finally, the applicant's retirement or release from assignment order should be amended to show he was placed on the retired list in the rank and grade of SSG/E-6.
BOARD VOTE:
____x____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 him to SSG/E6 effective 28 March 2013 and paying him any pay and allowances due as a result of this correction
* amending his retirement order to show his placement on the Retired List in the rank and grade of SSG/E-6
* deleting the entries "SGT" and E-5" from items 4a and 4b of his DD Form 214 and adding the entries "SSG" and "E-6," respectively
*
deleting the entry "2009 03 04" from item 12i of his DD Form 214 and adding the entry "2013 03 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) AR20140003115
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ABCMR Record of Proceedings (cont) AR20140003115
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