BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140013588 


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 his retirement rank be changed from specialist (SPC)/E-4 to staff sergeant (SSG)/E-6.

2.  The applicant states that his retirement orders were changed on the same date he retired and his rank was changed from SSG/E-6 to SPC/E-4.  He was supposed to retire as an SSG/E-6.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); Headquarters, III Corps and Fort Hood, Orders 206-0123, dated 25 July 2011; and Headquarters, III Corps and Fort Hood, Orders 
293-0112, dated 20 October 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army (RA) on 2 September 1999 and he was released from active duty on 1 December 2002 in the rank of SPC.  On the following day, he was transferred to a Reserve unit to complete his military service obligation.

2.  He enlisted in the RA again on 22 May 2003 in pay grade E-4.

3.  Orders 332-29, dated 28 November 2005, show he was promoted to sergeant (SGT)/E-5, effective 1 March 2005.

4.  He provided Headquarters, III Corps and Fort Hood, Orders 206-0123, dated 25 July 2011, which show he was released from assignment and duty because of physical disability incurred while entitled to basic pay, effective 19 October 2011 and placed on the retired list on the following day in the rank of SSG.  

5.  His military record in the interactive Personnel Electronic Records Military Service (iPERMS) contains the following documents:

   a.  An Enlisted Record Brief, dated 19 October 2011, shows in Section III – Service Data he was reduced to SPC on 24 August 2011.  This document also shows in Section I - Assignment Information he was flagged on 19 September 2011 with a flag code of "HA" (H - a flag when actions resulting from a 
court-martial, nonjudicial punishment, or punishment from a civil court and A - a flag for adverse actions).  His service record is void of nonjudicial punishment.

   b.  Headquarters, III Corps and Fort Hood, Orders 292-0159, dated 19 October 2011, rescinded Orders 206-0123 issued on 25 July 2011.
   
   c.  Headquarters, III Corps and Fort Hood, Orders 292-0163, dated 19 October 2011, released him from assignment and duty in the rank of SPC because of physical disability incurred while entitled to basic pay with an effective date of retirement of 19 October 2011.  He was placed on the retired list on 
20 October 2011 in the rank of SPC.  
   
   d.   A Physical Disability Information Report, dated 21 October 2011, shows he was medically retired on 19 October 2011 and on the following day he was placed on the retired list in pay grade E-4.  This document also shows he completed 12 years, 1 month, and 18 days of service for pay purposes.  

6.  He also provided Headquarters, III Corps and Fort Hood, Orders 293-0112, dated 20 October 2011, which show he was released from assignment and duty because of physical disability incurred while entitled to basic pay, effective 19 October 2011 and on the following day he was placed on the retired list in the rank of SPC.

7.  His DD Form 214 shows he was medically retired on 19 October 2011 in the rank and pay grade of SPC/E-4 with an effective date of pay grade of 24 August 2011.  

8.  His service record is void of evidence which shows he was promoted to SSG/E-6 prior to his retirement date on 19 October 2011.

9.  On 15 September 2014, an advisory opinion was obtained from the Chief, Transition Center, Installation Adjutant General, Fort Hood, TX who stated:

	a.  The applicant was a SGT with a date of rank of 1 March 2008 and was promotable to SSG.  This means had he stayed promotable and not been flagged he would have been promoted to SSG on his last day in the active Army.  

	b.  The applicant was reduced to SPC on 24 August 2011 as attested by his latest Enlisted Record Brief located in iPERMS.  Once he was reduced to SPC, he was no longer promotable; therefore, the Physical Disability Information Report correctly retired him as a SPC.  

	c.  All documents are located in iPERMS and listed on the Enlisted Record Brief with exception of the reduction document, which may be available through Finance.

10.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  However, he did not provide a response within the allotted timeframe.  

11.  Army Regulation 600-8-19 (Enlisted Promotion and Reductions) prescribes policies and procedures governing promotions and reductions of Army enlisted personnel.  Paragraph 3-27 (Removal from recommended list) states that all Soldiers (including those integrated as a result of command list integration) will be immediately removed from a recommended list for all conditions as outlined in this regulation, including:

	a.  Adverse actions as outlined below (indicated by a flag).  Soldiers are automatically removed from the recommended list when a flag is initiated. Soldiers flagged for adverse action will be reintegrated by the commander onto the recommended list if the case is closed favorably (provided otherwise qualified) without re-appearance before a promotion board.

	b.  Conviction by court-martial, including summary court-martial.

	c.  Nonjudicial punishment imposed under Uniform Code of Military Justice (UCMJ), Article 15 (not including summarized proceedings), regardless of whether the punishment is suspended.  It is not the intent of this regulation to remove Soldiers from a promotion list when punished under the UCMJ, with a summarized Article 15.  However, because the flag removal (closed unfavorably) results in automatic promotion list removal, unit S1s must act to 
re-integrate these Soldiers to the promotion list upon closure of the flag.

	d.  Reduction in grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was supposed to retire as an SSG/E-6 is acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case.

2.  The evidence of record shows he was promoted to SGT on 1 March 2005.

3.  Orders 206-0123 were published on 25 July 2011, which ordered his release from assignment and duty because of physical disability on 19 October 2011 and he was placed on the retirement list in the rank of SSG at that time.  However, these orders were later revoked.

4.  The applicant's Enlisted Record Brief shows he was reduced to SPC on 24 August 2011 and was flagged due to nonjudicial punishment.  His service record is void of the disciplinary action that reduced him to SPC.

5.  The evidence of record shows the applicant was medically retired on 19 October 2011 and was placed on the retired list in the rank of SPC on 20 October 2011.  

6.  The advisory opinion states that the applicant had been in a promotable status to SSG.  However, at the time he was medically retired on 19 October 2011 he was no longer promotable to SSG.  

7.  Since the applicant was in a non-promotable status at the time he was separated for disability, he was appropriately placed on the retired list in the rank of SPC. 

8.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20140013588





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013588



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1