IN THE CASE OF:	   

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140010603 


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 record to show she was retired in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  The applicant states after she was injured in Iraq, she was placed on the Temporary Disability Retired List (TDRL).  She went through her medical evaluations and she was discharged due to her disabilities in the rank/grade of SGT/E-5.  

3.  The applicant provides:

* Certificate of Retirement
* a letter
* Orders D063-37
* Orders 271-830
* Orders 306-807
* page 2 of two DA Forms 638 (Recommendation for Award)
* a citation
* Meritorious Service Medal Certificate
* Arkansas Distinguished Service Medal Certificate

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 Arkansas Army National Guard on 15 March 1982.

3.  On 13 April 2007, a Physical Evaluation Board (PEB) convened and considered the applicant's disability of post-traumatic stress disorder and chronic low back pain.  The PEB found that the applicant's medical and physical impairment prevented the reasonable performance of duties required by her grade and military specialty.  The PEB further recommended the applicant be placed on the TDRL with a combined rating of 40 percent. 

4.  Orders 114-809, issued by the Military Department of Arkansas, Office of the Adjutant General, dated 24 April 2007, promoted the applicant from the rank/grade of SGT/E-5 to SSG/E-6 with an effective date and date of rank of         13 April 2007.

5.  Orders D229-08, issued by the U.S. Army Physical Disability Agency, dated 16 August 2007, released the applicant from duty because of physical disability and placed her on the TDRL on 21 September 2007 in the rank/grade of          SGT/E-5 with a 40 percent combined disability rating.

6.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 21 September 2007, shows the applicant was honorably separated from service due to being medically unfit for retention.  This form shows her rank/grade as SSG/E-6 and her date of rank as 13 April 2007. 

7.  Orders D063-37, issued by the U.S. Army Physical Disability Agency, dated         4 March 2010, removed the applicant from the TDRL and permanently retired her in the rank/grade of SGT/E-5 effective 4 March 2010 with a 60 percent combined disability rating.

8.  During the processing of this case, on 28 January 2015, an advisory opinion was obtained from the Deputy, Personnel Policy Branch, NGB.  The advisory official states:

   a.  The ARNG Information Guide on Non-Regular Retirement, dated 15 April 2009, states Soldiers will retire in the grade held on the day before, or the date of, their retirements unless they are entitled to higher grades by law.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay) describes this process.
   
   b.  The NGB Retirements Branch concurs with this recommendation to correct her retirement rank/grade from SGT/E-5 to SSG/E-6 and authorize all back pay and allowances based on the correct effective date of rank.  

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 TDRL, is entitled to the grade equivalent to the highest of the following:  (1) the grade in which he 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 2007 it was determined the applicant's medical condition prevented satisfactory performance of duty in her grade and specialty.

2.  Orders 114-809, issued by the Military Department of Arkansas, Office of the Adjutant General, dated 24 April 2007, promoted the applicant from the rank/grade of SGT/E-5 to SSG/E-6 with an effective date and date of rank of         13 April 2007.

3.  In view of the foregoing, the applicant is entitled to correction to her record to show she was promoted to the rank/grade of SSG/E-6 with a date of rank and effective date of 13 April 2007, and she should receive all back pay and allowances associated with the corrected effective date of rank.








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 amending Orders D229-08, issued by the U.S. Army Physical Disability Agency, dated 16 August 2007, to show she was placed on the TDRL effective                 21 September 2007 in the rank/grade of SSG/E-6 and providing her all back retired pay due as a result of this correction.




      ___________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)                                         AR20140010603





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ABCMR Record of Proceedings (cont)                                         AR20140010603



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