BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140011530 


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 retirement DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his retired rank as sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.  

2.  He states:

	a.  According to Title 10, U.S Code, section 1372, he should have been retired at the grade he would have been promoted to (E-5) had it not been for his disability for which he was retired.

	b.  He met all requirements to appear before the promotion board, but was not able to appear because a current Army Physical Fitness Test (APFT) was required.  He could not take the APFT test due to his disability.  

   c.  He was also prevented from attending military classes for which he would have earned promotion points and no other classes were offered to him due to his profile for his disability.  If it wasn't for his disability, there would be no reason he wouldn't have been on the promotion list and promoted to E-5.

3.  He provides his retirement orders, DA Form 4856 (Developmental Counseling Form), and a memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 February 2009.  
2.  He was promoted to private first class/E-3 on 1 October 2009 and to SPC/E-4 on 1 December 2010.  

3.  On 1 November 2012, he was evaluated by a Medical Evaluation Board (MEB) while he was serving in the rank/pay grade of SPC/E-4.  After consideration of clinical records, laboratory findings, and a physical examination, the MEB found the applicant had the following medical conditions that fell below retention standards:

	a.  Cervical spondylosis and cervical myofascial pain syndrome;

	b.  Thoracic spondylosis and myofascial pain syndrome with thoracic strain; and 

	c.  Lumbar spondylosis and myofascial pain syndrome with lumbar strain.  

4.  He did not agree with the findings and recommendation of the MEB and was referred to a Physical Evaluation Board (PEB).  

5.  On 10 January 2013, he was again evaluated by an MEB while serving in the rank/pay grade of SPC/E-4.  The MEB found the applicant had the same medical conditions that did not meet retention standards as listed on the previous MEB.

6.  On 21 May 2014, a formal PEB determined he was physically unfit for thoracic/lumbar spondylosis, myofascial pain syndrome with thoracic/lumbar strain, and cervical spondylosis and cervical myosfascial pain syndrome.  The PEB Proceedings show his rank as "SPC."  The PEB recommended a disability rating of 30 percent and that the applicant's disposition be permanent disability retirement.  The applicant concurred with the PEB's findings and recommendations and did not request reconsideration of his Department of Veterans Affairs (VA) ratings.  

7.  He provided the following documents:

	a.  Memorandum, subject: Application for Attendance at Fort Carson, CO Troop School, dated 22 August 2011, which shows his company commander requested that the applicant be scheduled for the Troop School course, "Bus driver course" with a start date of 26 September 2011 and ending date of 30 September 2011.

	b.  DA Form 4856, dated 9 May 2012, which shows he was counseled regarding his non-recommendation to appear before the June promotion board.  The counseling official indicated he was not recommending the applicant to appear before the June promotion board.  The applicant was advised that he met the requirements for consideration under the primary zone; however, he was not fully eligible.  The counseling official stated the applicant still hadn't taken a current APFT due to his physical profile and he was required to have a current APFT in order to appear before the board.

   c.  Orders 150-0013, dated 30 May 2014, which show he was retired from active duty on 26 July 2014 by reason of physical disability and was placed on the Retired List in the rank of SPC on the following date.  He completed 5 years, 5 months, and 24 days of total active military service at the time of his retirement.

8.  Title 10, U.S. Code, section 1372, states that 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 (TDRL) under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired;

	b.  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;

	c.  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; or

	d.  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.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 5-7 (Eligibility for promotion selection board consideration) states that a passing APFT score on the APFT within 12 months of the date of the board is mandatory for promotion consideration (nonwaivable).  



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 3 February 2009 through 26 July 2014.

2.  The applicant was promoted to SPC/E-4 on 1 December 2010.

3.  The evidence of record shows he was counseled on 9 May 2012 regarding his non-recommendation to appear before the June promotion board to SGT/E-5.  At that time, he was informed that he met the requirements for consideration for promotion under the primary zone, but he hadn't taken a current APFT.  As a result, he was not fully eligible to appear before the SGT/E-5 promotion board.  His commander properly denied him promotion consideration based on the governing regulation.  

4.  Orders 150-0013, dated 30 May 2014, show he was retired from active duty on 26 July 2014 by reason of physical disability and was placed on the Retired List in the rank of SPC on the following date.  He completed 5 years, 5 months, and 24 days of total active military service at the time of his retirement.

5.  Based on Title 10, USC, Section 1372, since he was not in a promotable status, he should have been placed on the retired list at the highest rank satisfactorily held.  His highest grade held was SPC/E-4.  Therefore, he was properly placed on the retired list in July 2014 at the highest rank held, SPC/E-4.

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)                                         AR20140011530





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ABCMR Record of Proceedings (cont)                                         AR20140011530



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