IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140019088 


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, in effect, correction of his records to show he was permanently retired for disability in the rank/grade of staff sergeant (SSG)/E-6 vice specialist (SPC)/E-4. 

2.  The applicant states he is currently retired by reason of permanent disability, in the rank/grade of SPC/E-4.  However, he previously served honorably in the Regular Army and he was discharged as a promotable sergeant (SGT)/E-5.  He had nothing but honorable service; therefore, he should be retired as an E-6. 

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 16 August 1983 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  

2.  He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments and he was promoted to SGT/E-5 on 1 August 1986.  

3.  He was honorably discharged on 24 July 1992 under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by 

reason of expiration of term of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 4a (Grade, Rate or Rank) "SGT"
* item 4b (Pay Grade) "E-5"
* item 12i (Effective Date of Pay Grade) "86-08-01"

4.  After a break in service, the applicant enlisted in the U.S. Army Reserve (USAR) in the rank/grade of SPC/E-4 on 7 November 2008.  He held MOS 56M (Chaplain Assistant).  

5.  He entered active duty on 16 April 2010 for medical processing.  He was assigned to Warrior Transition Battalion, Bethesda, MD, and after multiple extensions on active duty, it appears he was considered by a physical evaluation board that recommended his permanent retirement.  

6.  On 31 March 2014, Headquarters, U.S. Army Garrison, Fort Detrick Army Element, Bethesda, published Orders 090-0135 ordering his retirement effective 27 May 2014 and placement on the Retired List in the rank/grade of SPC/E-4, effective 28 May 2014.  The statute authorizing retirement is Title 10, U.S. Code, section 1201.  

7.  He was honorably retired on 27 May 2014 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability – enhanced.  The DD Form 214 he was issued shows he completed 2 years, 1 month, and 12 days of creditable active service.  This form also shows in:

* item 4a (Grade, Rate or Rank) "SPC"
* item 4b (Pay Grade) "E-4"
* item 12i (Effective Date of Pay Grade) "1986-08-01"

8.  Army Regulation 635-5 (Separation Documents) established at the time the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). 

9.  Army Regulation 600-8-19 (Enlisted Promotion and Reduction) provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(c) states per the provisions of Title 10, U.S. Code, section 1372, Soldiers on a promotion list at the time of retirement for disability (emphasis added) 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 (grade on retirement physical disability, members of the Armed Forces), states 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 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 temporary disability retired list 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. 

	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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant previously served on active duty from 16 August 1983 to 24 July 1992.  He held the rank/grade of SGT/E-5 at the time of his discharge.  There is no evidence in his records and he provides none to show he was a promotable SGT at the time of his discharge in 1992.  

2.  But even if he had been a promotable SGT in 1992, he was not discharged for disability in 1992; he was discharged by reason of expiration of term of service.  His records correctly listed his rank/grade of SGT/E-5 at the time.  

3.  When he enlisted in the USAR on 7 November 2008, he did so in the rank/grade of SPC/E-4.  There is no evidence in his records and he provides none to show he was a promotable SPC/E-4 at any time from the date he enlisted to the date he entered active duty and/or the date he retired.  He held the rank/grade of SPC/E-4 on the date of retirement.  That is why his 2014 DD Form 214 reflects his rank/grade as SPC/E-4.  

4.  However, his retirement orders should have reflected the rank/grade of SGT/E-5, not SPC/E-4.  By law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title is entitled to the grade equivalent to 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. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:  

* amending Orders 090-0135, issued by Headquarters, U.S. Army Garrison, Fort Detrick Army Element, on 31 March 2014, to show he was placed on the retired list in the grade of SGT/E-5
* paying him any back retired pay as a result of this correction

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to placing him on the Retired List in the rank/grade of SSG/E-6. 



      _______ _   __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)                                         AR20140019088



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ABCMR Record of Proceedings (cont)                                         AR20140019088



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