BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140010818 


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) and retirement orders to show her rank/grade as sergeant (SGT)/E-5 vice specialist (SPC)/E-4.

2.  The applicant states she was promotable at the time she was medically retired; therefore, she should have been retired as a SGT vice SPC.

3.  The applicant provides:

* her DD Form 214 for the period ending 26 November 2008 
* her Enlisted Record Brief (ERB), dated 13 August 2008
* Orders Number D240-10, issued by the U.S. Army Physical Disability Agency (USAPDA) on 28 August 2013
* a memorandum from the USAPDA, dated 28 August 2013
* her Medical Protection System (MEDPROS)-Individual Medical Readiness record, generated on 23 January 2007

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 9 April 2002 and held military occupational specialty 68J (Medical Logistics Specialist).

3.  She provided her MEDPROS-Individual Medical Readiness record, generated on 23 January 2007.  This document shows her rank as SPC (promotable).

4.  Her ERB, dated 8 September 2008, shows:

* her rank/grade as SPC/E-4
* her date of rank as 1 March 2004
* she had 350 promotion points as of 12 July 1999 (sic)
* she attended/completed the Warrior Leader Course (WLC) in 2004
* she was authorized the Noncommissioned Officer Professional Development Ribbon

5.  Orders Number 253-1, issued by the Installation Management Command – Europe, Kaiserslautern Transition Center on 9 September 2008, show she was placed on the Temporary Disability Retirement List (TDRL) on 27 November 2008 in the rank of SPC.

6.  On 26 November 2008, she was retired due to a temporary disability in the rank of SPC after completing 6 years, 7 months, and 18 days of net active service.

7.  Orders Number D240-10, issued by the USAPDA on 28 August 2013, removed her from the TDRL and permanently retired her in the rank/grade of SPC/E-4.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 

	a.  Paragraph 1-20c states, per the provisions of Title 10, U.S. Code (USC), 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.  Paragraph 3–1 (Promotion system) governs the SGT and staff sergeant (SSG) promotion system for Active Army and U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Soldiers.  Field-grade commanders (CDR) in units authorized a CDR in the grade of lieutenant colonel (LTC) or higher have promotion authority to the grades of SGT and SSG.  Promotions to SGT and SSG are executed in a semi-centralized manner.  Field operations will handle board appearance, promotion point calculation, promotion list maintenance, and the final executions of the promotions occur in the field in a decentralized manner.

	c.  Table 3–3 (Eligibility criteria for recommendation) and 3-4 (Eligibility criteria for promotion) states a Soldier must meet the following criteria to be eligible for recommendation and promotion to SGT: a Soldier must have at least 350 promotion points; have at least 34 months time in service (TIS); and have at least 6 months time in grade (TIMIG), waivable to 16 months TIS and 4 months TIMIG.

	d.  Paragraph 3–17 (Department of the Army directed promotion list integration to SGT and SSG) identifies the policies and procedures related to the automatic list integration (ALI) of certain Soldiers to the ranks of SGT and SSG.  This policy provides that each month, Active Army Soldiers in all MOSs who meet the following criteria will be automatically integrated onto the Department of the Army SGT promotion standing list, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance: 

* the Soldier must have 46 months TIS (to become eligible for promotion at 48 months)
* the Soldier must have 10 months TIG (to become eligible for promotion at 12 months)
* the Soldier must otherwise not be ineligible for promotion in accordance with this regulation
* the Soldier must otherwise not be denied by his/her CDR
* the Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her DD Form 214 and retirement orders to show her rank/grade as SGT/E-5 vice SPC/E-4 was carefully considered.
2.  The applicant's ERB indicates she had the minimum number of promotion points necessary for promotion to SGT.  Her ERB does not definitively show she appeared before a battalion promotion board; however, based on her TIS and TIG, and the absence of evidence that shows she was otherwise non-promotable (aside from her apparent medical disability), it appears she met the criteria for ALI as defined by Army Regulation 600-8-19, paragraph 3-17.  Since ALI-eligible Soldiers are integrated onto the Department of the Army promotion standing list with the minimum number of points, in this case 350, it appears the promotion points identified on her ERB are a reflection of her ALI status.  Either way, it appears she was promotable and on a Department of the Army promotion list.

3.  According to Army Regulation and statute, Soldiers who are in a promotable status at the time of retirement for disability will be retired at the promotion grade effective the day before placement on the retired list.  As such she should have been promoted to SGT effective 26 November 2008.

4.  Based on the foregoing, her retirement orders and her DD Form 214 should be corrected to show her rank as SGT and her DOR as 26 November 2008.  Additionally, the Defense Finance and Accounting Service (DFAS) should pay her any pay or entitlements to which she is entitled as a result of this correction.

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:

	a.  showing she was promoted to SGT/E-5 effective 26 November 2008;

	b.  correcting her DD Form 214 in:

* Item 4a (Grade, Rate or Rank) to delete the current entry and replace it with the entry "SGT"
* Item 4b (Pay Grade) to delete the current entry and replace it with the entry "E05"
* Item 12i (Effective Date of Pay Grade) to delete the current entry and replace it with the entry "2008 11 26"

	c.  correcting her retirement orders to show her rank as SGT; and

	d.  DFAS paying her any pay or entitlements to which she is entitled 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)                                         AR20140010818





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ABCMR Record of Proceedings (cont)                                         AR20140010818



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