IN THE CASE OF:  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140009586 


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), ending on 30 March 2012, to show he retired for disability in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. 

2.  The applicant states his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) ending on 1 August 2002 erroneously listed his rank/grade as specialist (SPC)/E-4. 

3.  The applicant provides:

* DD Form 214, ending on 30 March 2012
* Letter from the Department of Veterans Affairs
* Orders 172-008, dated 21 June 2001
* Printout titled "DOD Military Service Information" 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Michigan Army National Guard (MIARNG) in the rank/grade of SPC/E-4 on 10 September 1999.  He enlisted for the State Officer Candidate School (OCS) Program and assignment to the 144th Military Police (MP) Company.  His DD Form 1966 (Record of Military Processing) states in the Remarks block:

If I fail to complete State OCS Program, I will be ordered to advanced individual training or discharged without board action or appeal.
2.  He was ordered to active duty on 3 January 2000 and completed basic combat training.  He was released from active duty in the rank/grade of SPC/E-4 on 10 March 2000.

3.  On 21 June 2001, MIARNG published Orders 172-008 ordering his: 

* attachment to the 2nd Battalion, 177th Regiment, MIARNG, from 1 June 2001 to 30 September 2002, to attend State OCS Program
* promotion to SSG/E-6 and award of military occupational specialty 09S (OCS Cadet), effective 1 June 2001

4.  On 13 March 2002, MIARNG published Orders 072-077 releasing him from assignment to the 144th MP Company and reassigning him to the 1775th MP Company, in the rank/grade of SPC/E-4 and in military occupational specialty (MOS) 95B (MP). 

5.  On 20 August 2002, MIARNG published Orders 232-011 honorably discharging him from the ARNG in the rank/grade of SPC/E-4 effective 1 August 2002 in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) paragraph 8-26g(3) (defective enlistment agreement).

6.  His NGB Form 22 shows he was discharged from the ARNG on 1 August 2002 in accordance with NGR 600-200, paragraph 8-26g(3) by reason of defective enlistment.  His NGB Form 22 listed his rank/grade as SPC/E-4 with a date of rank as 11 July 2001. 

7.  He enlisted in the U.S. Army Reserve (USAR) for 8 years in the rank/grade of SPC/E-4 on 4 March 2004.  This date was also established as his date of rank to SPC/E-4. 

8.  He entered active duty for training (ADT) on 25 March 2004 and completed training for award of MOS 31B (MP).  He was honorably released from ADT on 4 June 2004.  His DD Form 214 for this period also listed his rank/grade as SPC/E-4 and his effective date of pay grade as 4 March 2004. 

9.  He entered active duty on 4 June 2005 and appears to have been advanced to SGT/E-5 on 1 October 2006.  His promotion orders are not available for review with this case.  He was honorably released from active duty on 1 February 2007. His DD Form 214 for this period listed his rank/grade as SGT/E-5 and his effective date of pay grade as 1 October 2006. 



10.  On 4 January 2008, Headquarters, 88th Regional Readiness Command published Orders 08-005-00049 reassigning him to another troop program unit of the USAR, Detachment 2 (Criminal Investigation Division (CID)), 232nd MP Detachment, effective 1 February 2008.  His rank is listed as SGT. 

11.  His records contain a DA Form 1059 (Service School Academic Evaluation Report) that shows he completed Phase IV of the Reserve Component Apprentice Special Agent Course from 14 to 25 July 2008. 

12.  On 2 August 2008, Headquarters, 88th Regional Readiness Command published Orders 08-215-00022 awarding him primary MOS 31D2O (CID Special Agent) and secondary MOS 31B, effective 2 August 2008.  His rank is listed as SGT.

13.  He was ordered to active duty on 31 October 2008.  He was also retained on active duty pending disability processing. 

14.  On 18 November 2011, a physical evaluation board (PEB) considered his disabling conditions of compression fracture, degenerative joint disease, and right radiculopathy, and determined those conditions prevented satisfactory performance of duty in his primary MOS and grade.  The PEB rated his conditions at 50 percent and recommended his permanent retirement.  He concurred. 

15.  On 7 March 2012, Headquarters, U.S. Army Garrison, Fort Knox, KY, published Orders 067-0192 releasing him from assignment on 30 March 2012 by reason of disability and placing him on the permanent retirement list in his retired grade of SGT effective 31 March 2012. 

16.  He retired on 30 March 2012 and he was placed on the Retired List on 31 March 2012.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) - SGT
* item 4b (Pay Grade) - E-5
* item 12i (Effective Date of Pay Grade) - 1 October 2006

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

18.  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

19.  NGR 600-200 establishes standards, policies, and procedures for the management of the ARNG enlisted Soldiers.  Chapter 8 of the regulation in effect at the time set forth the basic authority for the separation of enlisted personnel.  Paragraph 8-26g(3) establishes policy and prescribes procedures for separating members for a defective enlistment.  A defective enlistment or reenlistment agreement exists as a result of a material misrepresentation by recruiting or retention personnel, upon which the Soldier reasonably relied, and the Soldier was induced to enlist or reenlist with a commitment for which the Soldier was not qualified; or if the Soldier received a written enlistment or reenlistment commitment from recruiting or retention personnel for which the Soldier was qualified, but which cannot be fulfilled by the Army; or when the enlistment or reenlistment was involuntary.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the ARNG on 10 September 1999 for the State OCS Program.  He was attached to an MP unit and advanced from SPC/E-4 to SSG/E-6 on 1 June 2001 for the purpose of attending such program.  There is no indication in his records that he completed this OCS Program.  At some point, the ARNG or the NGB determined his enlistment was defective.   

2.  The complete facts and circumstances surrounding his discharge from the ARNG in August 2002 are not available for review with this case.  However, his available records, coupled with his NGB Form 22, confirm he was discharged from the ARNG on 1 August 2002 by reason of defective enlistment.  His separation rank/grade was that of SPC/E-4.  

3.  After a break in service, he enlisted in the USAR on 4 March 2004, in the rank/grade of SPC/E-4.  He appears to have been promoted to SGT/E-5 on 1 October 2006, despite the absence of any promotion orders in his records.  He entered active duty on 31 October 2008 and at some point, he was entered into the Army physical disability evaluation system.  A PEB considered his records and recommended his permanent retirement.  

4.  He was retired on 30 March 2012 and he was placed on the Retired List in his retired rank/grade of SGT/E-5 on 31 March 2012.  Nothing in his records shows he held a permanent rank/grade of SSG/E-6 or he was promotable to SSG/E-6 on or prior to his disability retirement.  Additionally, the temporary rank/grade of SSG/E-6 he held in 2001 as part of attending the State OCS Program was negated by his defective enlistment and thus it was never considered satisfactory.  

5.  After a comprehensive review of the applicant's records, there does not appear to be an error or an injustice.  As a result, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _   _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)                                         AR20140009586



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ABCMR Record of Proceedings (cont)                                         AR20140009586



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