BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140003872 


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 his retired grade be changed to E-8, that 118 days of leave be restored, that his pay be corrected, and that he be granted a personal appearance before the Board.

2.  The applicant states, in effect, he was on the promotion selection list for pay grade E-8 at the time he was placed on the Temporary Disability Retired List (TDRL) and should have been retired in the pay grade of E-8.  He also states that he was denied the opportunity to take all of his leave prior to his retirement date and his Post Deployment Mobilization Respite Absence (PDMRA) entitlements were incorrectly calculated.

3.  The applicant provides a list of enclosures on page 7 of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s records be corrected to show he was retired in the pay grade of E-8 and that he be granted a personal appearance before the Board.

2.  Counsel states that originally the applicant received orders retiring him in the pay grade of E-8; however, they were summarily changed without good reason or cause to show he was retired in the pay grade of E-7.  Additionally, he was denied the use of his PDMRA benefits.

3.  Counsel provides no additional documents with the application.
CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the U.S. Army Reserve (USAR) in the pay grade of E-7 as a financial management sergeant when he was ordered to active duty for operational support on 15 September 2011.

2.  On 14 November 2013, a Physical Evaluation Board (PEB) conducted at Joint Base Lewis-McChord, Washington determined the applicant was unfit for retention and recommended that he be placed on the TDRL with a 60% disability rating.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  The PEB was approved by the Department of the Army on 9 December 2013.  Retirement orders dated 
13 January 2014 shows his retirement grade as E-8.  These orders were amended on 7 February 2014 to show his retired as E-7 grade.

3.  On 11 February 2014, he was placed on the TDRL in the pay grade of E-7.  He had served 18 years, 4 months, and 9 days of active service and 15 years, 
11 months, and 12 days of inactive service.

4.  The applicant provides a copy of the Fiscal Year Staff Sergeant –Sergeant Major Reserve Component Individual Ready Reserve-Designated Individual Mobilization Augmentee Selection Board Results that were released on 
27 September 2012.  The list contains the names of all personnel considered and denotes those who were selected with a sequence number for promotion.  The applicant’s name is on the considered list; however, it does not contain a sequence number for selection.

5.  A review of the applicant’s official records as well as the documents he provided with his application fails to show any evidence that he has exhausted his administrative remedies related to his leave or pay by applying to the U.S. Army Human Resources Command (HRC) or the Defense Finance and Accounting Service (DFAS).  

6.  In the processing of this case a staff advisory opinion was obtained from HRC which recommended that the applicant exhaust his administrative remedies regarding his leave.  Accordingly, that issue will not be discussed further in these proceedings.  

7.  The staff advisory opinion from HRC also opines that the applicant was never promoted to the pay grade of E-8 and was not on the promotion standing list on the day of his separation.  Officials HRC also noted the applicant’s name on the selection list does not contain a sequence number which indicates he was considered but was not selected. 
8.  The advisory opinion was provided to the applicant for comment and he and his counsel responded to the effect that they disagree with the HRC advisory opinion and contend that the applicant should have been promoted to pay grade E-8.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the Soldier holds on the date of retirement as directed in Title 10 of the U.S. Code, section 3961 (10 USC 3961).  

10.  Paragraph 12-6 (Advancement on the Retired List) of the regulation contains guidance on the advancement of enlisted Soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no other provisions of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It provides, in pertinent part, that applicant’s do not have a right to a hearing before the ABCMR.  The director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should be corrected to show he was retired in the pay grade of E-8 has been noted.

2.  Notwithstanding the applicant’s disagreement regarding the interpretation of the selection board results, the explanation provided by HRC that individuals selected for promotion have a sequence number by their name is consistent with past selection board results that pertain to enlisted Soldiers.  In short, the list indicates the applicant was considered but was not selected.

3.  The applicant’s contention that orders were originally published showing he was being retired in the pay grade of E-8 and that they were erroneously revoked has also been noted.  The available evidence indicates that the original orders were published showing he was retired in the pay grade of E-8 based on information obtained from the applicant’s counsel indicating he held promotion list standing.  However, once it was verified that he was not selected for promotion to E-8, the orders were changed.

4.  Accordingly, there appears to be no error or injustice in his case and no basis to grant his request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  __x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20140003872



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ABCMR Record of Proceedings (cont)                                         AR20140003872



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