IN THE CASE OF:
BOARD DATE: 24 March 2015
DOCKET NUMBER: AR20140012030
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 retired rank and pay grade to show he retired in the rank/grade of sergeant (SGT)/E-5.
2. The applicant states he had been approved for promotion but was processed for physical disability retirement and not promoted.
3. The applicant provides copies of:
* Recommended List for Promotion (page 6 of 58)
* Enlisted Record Brief (ERB)
* DA Form 4856 (Developmental Counseling), dated 28 September 2007
* DA Form 4856, dated 3 August 2007
* U.S. Army Physical Disability Agency (USAPDA) Orders DO91-12, dated 1 April 2010
* Physical Evaluation Board (PEB) Memorandum, dated 1 April 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* PDA scanned record
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 10 March 2004 and served in military occupational specialties (MOS) 25B as an information technology specialist.
3. His ERB shows he served overseas in Iraq from 1 March 2005 to
28 November 2005 and was advanced to specialist (pay grade E-4) on
1 November 2005.
4. On 26 July 2008, he was placed on the Temporary Disability Retired List (TDRL) due to back strain originating from a 2006 parachute jump. He was removed from the TDRL on 1 April 2010 and permanently retired due to physical disability.
5. An advisory opinion was obtained from the Chief, Department of the Army (DA) Promotions, U. S. Army Human Resources Command (HRC), on 1 October 2014. The opining official recommended approval of the applicant's request and stated:
The Army Review Board[s] Agency will use this response to correct [the applicant's] DD Form 214 sections 4a and 4b to reflect SGT and E05, [section] 11 to reflect 25B2P and [section] 12i to reflect effective date of pay grade as 25 July 2008.
6. A copy of the advisory opinion was provided to the applicant for information and to allow him to submit comments or a rebuttal. No response was received.
7. Army Regulation 600-8-19 (Enlisted Promotion and Reductions) provides that 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.
8. 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 applicant contends his records should be corrected to show he retired as a SGT. He was promotable at the time of his disability retirement and he should have been promoted. An advisory opinion from HRC supports his contentions.
2. By law, the applicant should be promoted to the rank and grade of SGT/E-5 one day prior to his retirement date. Therefore, the applicant's record should be corrected to show he was promoted to SGT/E-5 effective 25 July 2008. In addition, his permanent disability retirement orders should be corrected to show his rank/grade was SGT/E-5.
3. Therefore, the applicant is entitled to correction of his records as recommended below and to any back pay and entitlements and retired pay due him 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 the evidence presented is 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. promoting him to SGT effective 25 July 2008;
b. amending his TDRL orders, permanent disability retirement orders, and his DD Form 214 for the period ending 25 March 2008 to show his rank/grade as SGT/E-5 effective 25 July 2008; and
c. providing him any back pay and allowances to include 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) AR20140009660
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ABCMR Record of Proceedings (cont) AR20140012030
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