BOARD DATE: 6 November 2014
DOCKET NUMBER: AR20140005614
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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was retired in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.
2. The applicant states at the time of her medical retirement she was promoted to the rank/grade of SGT/E-5.
3. The applicant provides:
* Certificate of Retirement
* Certificate of Appreciation
* Orders 106-0009
* Physical Disability Information Report
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 1 October 2004.
3. On 30 March 2010, a PEB convened and considered the applicant's disability of degenerative arthritis of the cervical spine. The PEB found that the applicant's condition had stabilized sufficiently for rating purposes and recommended permanent retirement with a combined rating of 30 percent.
4. Her DA Form 199 further stated she had been selected for promotion to SGT and was she was entitled to be retired at that grade per Title 10, U.S. Code, section 1372.
5. On 6 April 2010, the applicant concurred with the findings and recommendations of the PEB.
6. On 16 April 2010, U.S. Army Garrison, Fort Eustis, VA, published orders permanently retiring the applicant in the rank/grade of SGT/E-5, effective 27 June 2010.
7. On 27 June 2010, the applicant was retired due to permanent disability. Her DD Form 214 states the following:
* 4a (Grade, Rate or Rank) "SPC"
* 4b (Pay Grade) "E04"
* 12i (Effective Date of Pay Grade) "2006 09 01"
8. Army Regulation 600-8-19 (Enlisted Promotions), paragraph 1-20a specifies that Soldiers pending referral to a Medical Evaluation Board (MEB) or PEB will not be denied promotion, if already promotable, on the basis of medical disqualification if they are otherwise qualified for promotion. Paragraph 1-20c specifies 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. The Soldier will be promoted to the designated grade effective the day before placement on the retired list.
9. Title 10, U.S. Code, section 1372, specifies any member of the Armed Forces who is retired for physical disability or whose name is placed on the Temporary Disability Retired List (TDRL), is entitled to the grade equivalent to the highest of the following: (1) the grade in which he or she is serving on the date when his or her name was placed on the TDRL or on the date when retired, or (2) the highest temporary grade in which he or she served satisfactorily, (3) the permanent regular grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired, (4) the temporary grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that in April 2010 it was determined the applicant's medical condition prevented satisfactory performance of duty in her grade and specialty.
2. It appears the applicant was in a promotable status on 27 June 2010, when she was issued her retirement orders which show her rank/grade as SGT/E-5.
3. Title 10, U.S. Code, section 1372, specifies 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 or she would have been promoted had it not been for the physical disability for which he or she is retired.
4. Army Regulation 600-8-19, paragraph 1-20a specifies that 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. Therefore, the applicant is entitled to correction to her DD Form 214 to show she was promoted to the rank/grade of SGT/E-5 with a date of rank and effective date of 27 June 2010.
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:
* deleting the current entry in item 4a of her DD Form 214 and replacing it with "SGT"
* deleting the current entry in item 4b of her DD Form 214 and replacing it with "E05"
* deleting the current entry in item 12h of her DD Form 214 and replacing it with "2010 06 27"
__________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) AR20140005614
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ABCMR Record of Proceedings (cont) AR20140005614
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