BOARD DATE:  19 March 2015

		DOCKET NUMBER:  AR20140014223 


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 records to show he was placed on the Temporary Disability Retired List (TDRL) and retired due to permanent physical disability in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5. 

2.  The applicant states he was put on the TDRL as a SGT, but because he was on the promotion list, his rank should be shown as SSG.

3.  The applicant provides copies of:

* Enlisted Record Brief (ERB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 30 March 2011
* permanent physical disability retirement orders
* page 4 of Military Personnel (MILPER) Message 09-067, dated 25 March 2009

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.  Following active and inactive service in the Georgia Army National Guard and Regular Army (RA), the applicant reenlisted in the RA on 2 April 2003.  He held military occupational specialties (MOS) 25U (Signal Support Systems Specialist) and 91B (Wheeled Vehicle Mechanic).

3.  His ERB shows he served overseas in Korea, Bosnia and Iraq.  The highest rank/grade he attained was SGT effective 1 December 2004.

4.  Orders 018-0609 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY placed him on the TDRL effective 30 March 2011 as a SGT with an effective date of retirement of 31 March 2011.

5.  On 28 June 2012, a Physical Evaluation Board (PEB) convened and considered the applicant's disability of post-traumatic stress disorder, bilateral patellofemoral syndrome, and intervertebral disc syndrome.  The PEB found that the applicant's medical and physical impairments prevented the reasonable performance of duties required by his grade and military specialty.  The PEB further recommended the applicant be placed on the permanent disability retired list with a combined rating of 80 percent. 

6.  U.S. Army Physical Disability Agency, Order D221-09, dated 8 August 2012, shows he was removed from the TDRL and permanently retired due to physical disability effective 8 August 2012 as a SGT.

7.  An advisory opinion was obtained from the Chief, Department of the Army (DA) Promotions, U. S. Army Human Resources Command (HRC), Fort Knox, Kentucky, 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 SSG and E06, [section] 11 to reflect 25U3O and [section] 12i to reflect effective date of pay grade as 29 March 2011.

8.  A copy of the advisory opinion was provided to the applicant for information and to allow him to submit comments or a rebuttal.  A response was not received.

9.  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.

10.  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 SSG, instead of 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 SSG/E-6 one day prior to his retirement date.  Therefore, the applicant's record should be corrected to show he was promoted to SSG/E-6 effective 30 March 2011, one day prior to his 31 March 2011 placement on the TDRL.  In addition, his permanent disability retirement orders should be corrected to show his rank/grade was SSG/E-6. 

3.  Therefore, the applicant is entitled to correction of his records as recommended below and to all back pay and entitlements 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 SSG effective 29 March 2011; 

	b.  amending his TDRL Orders 018-0609, permanent disability retirement orders (Order D221-09), and his DD Form 214 for the period ending 30 March 2011 to show his rank/grade as SSG/E-6 effective 30 March 2011; and

	c.  providing him all 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)                                         AR20140014223



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