IN THE CASE OF:    

		BOARD DATE:  22 January 2015	  

		DOCKET NUMBER:  AR20140008377 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) in:

	a.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) to show his rank/grade as staff sergeant (SSG)/E-6; 

	b.  Item 11 (Primary Specialty) to show his military occupational specialty (MOS) as 92F3O (Petroleum Supply Specialist); and

	c.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) to add the Army Commendation Medal (3rd Award).

2.  The applicant states errors on his DD Form 214 are clerical and occurred at the Fort Polk, LA outprocessing facility.  His third award of the Army Commendation Medal was awarded after the issuance of his DD Form 214.

	a.  Items 4a and 4b of his DD Form 214 incorrectly listed his rank/grade.  His rank/grade are currently listed as sergeant (SGT)/E-5.  However, in accordance with his retirement orders, Order Number 335-0313, dated November 2012, his rank grade should be listed as staff sergeant (SSG)/E-6.  

	b.  Item 11 of his DD Form 214 should be corrected to show his MOS as 92F3O (skill level 3 (SSG)) vice 92F2O (skill level 2 (SGT)) as a result of the corrections in item 4a and 4b.

	c.  Item 13  of his DD Form 214 should be corrected to add the Army Commendation Medal (3rd Award) in accordance with Permanent Orders (PO) Number 050-04, dated 19 February 2013.

3.  The applicant provides:

* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the rating period 1 August 2011 through 31 July 2012
* DA Form 638 (Recommendation for Award), dated 13 February 2013
* Certificate for award of the Army Commendation Medal, dated 
19 February 2013
* Orders Number 335-0313, dated 30 November 2012
* Enlisted Record Brief (ERB)
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  After having previous enlisted service, the applicant enlisted in the Regular Army on 9 July 2007, in the rank/grade of private (PV2)/E-2.  He held MOS 92F.

2.  PO Number 299-16, issued by Headquarters, 82nd Combat Aviation Brigade, Fort Bragg, NC awarded him the Army Commendation Medal for service during the period 20 March 2008 to 10 August 2010.

3.  His record contains a DA Form 1059 (Service School Evaluation Report), dated 24 November 2010, which shows he attended and completed the Warrior Leader Course.

4.  Orders Number 208-135, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Polk, LA, dated 27 July 2011, promoted him to SGT/E-5 effective 1 August 2011.  His MOS of 92F1O was withdrawn and the MOS 92F2O was awarded.

5.  His NCOER for the rating period 1 August 2011 through 31 July 2012 shows his rank as SGT, his date of rank as 1 August 2011, his primary MOS code as 92F3O, and his principle duty title and duty MOS were listed as Petroleum 
Supply Sergeant/92F3O.  Additionally, his senior rater stated he should be "promote[ed] to Staff Sergeant with peers."

6.  He provided a copy of his ERB, dated 31 July 2012.  This ERB shows his rank as SGT, and his duty title and duty MOS as Petroleum Supply Sergeant/92F3O. His ERB also shows he had previously received two awards of the Army Commendation Medal.
7.  Orders Number 335-0313, issued by Headquarters, Joint Readiness Training Center, Fort Polk, LA, on 30 November 2012 ordered the applicant's retirement from active duty due to a permanent physical disability.  The effective date of his retirement was listed as 26 February 2013 and he was to be placed on the retired list the following day.  These orders show his rank as SGT in the name line but listed his retired grade as SSG.

8.  PO Number 050-04, issued by Headquarters, 162nd Infantry Brigade, Fort Polk, LA awarded him the Army Commendation Medal for service during the period 12 August 2010 through 31 December 2012.  His rank was listed as SGT.

9.  He provided a DA Form 638, dated 13 February 2013, which shows:

	a.  His first sergeant recommended him for award of the Army Commendation Medal (2nd Oak Leaf Cluster (i.e., 3rd Award)) and indicated he had previously been awarded the Army Commendation Medal (2nd Award).

	b.  PO Number 050-04, issued by Headquarters, 162nd Infantry Brigade, Fort Polk, LA, dated 25 February 2013 awarded him the ARCOM (3rd Award).

10.  He was honorably retired by reason of permanent disability, on 26 February 2013.  His DD Form 214 shows in:

* Items 4a and 4b the entries SGT/E05
* Item 11 the entry 92F2O (Petroleum Supply Specialist) 
* Item 12i (Effective Date of Pay Grade) the entry 1 August 2011
* Item 13 shows he received the Army Commendation Medal (2nd Award) 
* Item 18 (Remarks) his retired list grade as SGT

11.  During the processing of this case, an advisory opinion, dated 20 June 2014, was obtained from the U.S. Army Human Resources Command (HRC).  The HRC, DA Promotions Branch, stated, in effect:

	a.  After review of the applicant's application to the ABCMR, it has been determined that his request for military records to show he was promoted to SSG should be disapproved.

	b.  The records available to the Junior Enlisted Promotion section show the applicant's promotion records did not reflect any promotion points at the time of his separation; in other words, he was not promotable.  The applicant's retirement order will be corrected by the issuing authority.

12.  The applicant responded to the advisory opinion in a self-authored statement, dated 18 July 2014.  The applicant stated, in effect:

	a.  His promotion record does not contain promotion points because his unit utilized discriminatory local Standing Operating Procedures (SOP).  Soldiers, like the applicant, who were pending Medical Evaluation Boards (MEB) were referred to as "known losses…[a] waste of resources…[or a] lost cause."  As a result, these Soldiers were overlooked by enlisted leaders in the position to make promotion board recommendations.  

	b.  Regarding his promotion orders, he believes the Physical Evaluation Board (PEB) recommended he be retired as a SSG because he held a SSG duty position and his NCOER and ERB reflected a skill level 3 MOS.

	c.  He requests his original retirement orders to be enforced and that a 
DD Form 215 (Correction to DD Form 214) be issued to reflect his rank as SSG.  He stated that this promotion is an honorary promotion and nothing more.  He will not receive any financial gain if the Board enforces his original retirement orders because he receives compensation for the Department of Veterans Affairs (VA) in lieu of his Army retirement.  

	d.  Last, he would like to state that all of the correspondence he receives from the Army and the Defense Finance and Accounting Service (DFAS) are addressed to SSG (Applicant) (Retired).

13.  Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the Armed Forces), states unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

* the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired
* the permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination
* the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers.  

	a.  Paragraph 1-20(c) states 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.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.

	b.  Chapter 3 governs the SGT and SSG promotion system for active duty, U.S. Army Reserve, and Active Guard Reserve Soldiers.  Field-grade commanders in units authorized a commander in the grade of lieutenant colonel or higher have promotion authority to the grades of SGT and SSG; however, the promotion work center maintains the recommended list and issues the orders.  Promotion to SGT and SSG are executed in a semicentralized manner.  Field operations will handle board appearance, promotion point calculation, promotion list maintenance, and the final execution of the promotions occur in the field in a decentralized manner.  Headquarters, Department of the Army (HQDA) operations will handle promotion cutoff scores and the monthly SGT/SSG promotion selection by-name list, which are determined and announced monthly. HQDA and HRC will determine the needs of the Army by grade and MOS.  A Soldier’s total points are forwarded through the appropriate database, as determined by HRC to the automated system.  These points are consolidated into an Army-wide listing of eligible Soldiers, by MOS, maintained in the automated system.  A determination is then made for each MOS as to what promotion point cutoff score would promote the desired number of Soldiers to meet the needs of the Army in a specific month.  These decisions are based primarily upon budget constraints and individual MOS requirements.  

15.  Army Regulation 611-1 states the MOSC provides more specific occupational identity than the MOS.  It is used to classify enlisted soldiers, to classify enlisted positions in requirement and authorization, to provide detailed occupational identity in records, orders, reports, management systems and data bases, and as a basis for training, evaluation, promotion and other related management subsystem development.  The MOSC contains nine characters and provides more specific occupational identity than the MOS.  The MOSC is used to classify both personnel and positions in authorization documents.  The elements of the MOSC include the first three characters, which are a numeric-alpha combination that identifies the MOS without regard to level of skill.  The fourth character is a number (for example 1 is used to denote the enlisted grades of E-1 to E-4, 2 is used to denote the enlisted grade E-5, 3 for E-6, 4 for E-7, and so forth). This is a number, with the first three characters, shows skill and grade level in the MOS.  

16.  Army Regulation 635-5 (Separation Documents) at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Paragraph 2-4h provides detailed instructions and source document(s) for completing each block of the DD Form 214.  Subparagraph 2-4h(4) states items 4a and 4b contain the active duty grade or rank and pay grade at the time of separation, taken from the ERB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates that the applicant had received two awards of the Army Commendation Medal, prior to the issuance of PO Number 050-04, dated 25 February 2013, which awarded him the ARCOM (3rd Award).  Therefore, he is entitled to correction of his DD Form 214 to add this award.

2.  There is no evidence to show the applicant was recommended for the E-6 promotion board or that he went before an E-6 promotion board and was recommended for promotion to E-6 and in a promotable status at the time of his retirement or that he was discriminated against by not being recommended for promotion.  HRC has no record of promotion points to show he was in a promotable status.  Furthermore, his record is void of orders promoting him to SSG.  

3.  The governing regulation requires that promotions to SGT and SSG be announced in official orders.  These orders announce a Soldier’s promotion to the next grade, establish an effective date/date of rank, withdraw the old MOS and skill level and award a new one.  For example, when the applicant was promoted to SGT his orders established his effective date/date of rank as 1 August 2011, withdrew the MOS 92F1O and awarded the MOS 92F2O.  A Soldier’s MOS can only be awarded or withdrawn in official orders.  This is why promotion orders for Soldier being promoted to E-5 and above addressed the MOS by withdrawing the MOS containing the skill level for the previous grade and awarding the MOS for the promotion grade.

4.  The MOS a Soldier holds and the duty MOS in which they serve are not the same.  As previously stated, the Soldier's MOS can only be awarded in official orders, while a duty MOS is reflective of the position they are filling according to the unit manpower document.  Sometimes Soldiers serve one level below their current rank and up to two levels above, and when this occurs it is usually because the unit needs to fill a slot and a Soldier of the appropriate rank or grade is not available.  Nevertheless, the duty position a Soldier holds does not impact or change their current rank or MOS.

5.  The MOS entry in item 11 of his DD Form 214 (92F2O) appears to be correct. He held the rank/grade of SGT/E-5 at the time of separation.  The appropriate skill level associated with MOS 92F, E-5, is "2."  Therefore, the entry is correct because he held MOS 92F2O at the time of his discharge.

6.  As such, there is insufficient evidence to justify changing the rank/grade and MOS currently listed on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from his DD Form 214 for the period ending 25 February 2012 the Army Commendation Medal (2nd Award) and adding the Army Commendation Medal (3rd Award).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his rank to SSG and MOS to 92F3O.  



      _______ _   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)                                         AR20140008377





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ABCMR Record of Proceedings (cont)                                         AR20140008377



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