IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20140021205 


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 promotion to the rank and pay grade of staff sergeant (SSG)/E-6 prior to his placement on the Temporary Disability Retired List (TDRL).  He also requests correction of his records to show he was permanently retired.

2.  The applicant states he was promotable to pay grade E-6 at the time of his separation.  He should have been promoted.  He was on the TDRL and is now permanently retired.

3.  The applicant provides copies of the following:

* DA Form 3357 (Board Member Appraisal Worksheet)
* Report of Promotion Board Proceedings memorandum (page 1 of 3 pages)
* Enlisted Record Brief (ERB)
* Orders Number 279-1302
* Removal from TDRL Notification memorandum
* Order Number D-289-66

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, on 16 April 2003.  He was awarded military occupational specialty (MOS) 63B (light wheel vehicle mechanic).  He was promoted to the rank and pay grade of sergeant (SGT)/E-5 on 1 September 2005.
2.  He provided copies of the following:

   a.  A DA Form 3357, dated 3 December 2008, showing he was recommended for promotion to pay grade E-6 with 150 voting board members' points.

   b.  Page 1 of a 3-page Report of Promotion Board Proceedings memorandum, dated 3 December 2008, showing an Enlisted Promotion Board convened on that date and recommended the applicant for promotion to pay grade E-6 with a total of 739 points (589 promotion points and 150 board points). The portions of this report that confirm the promotion board president and the promotion authority approved the report are not available for review with this case. 

   c.  An ERB, dated 4 October 2012, showing in Section I (Assignment Information) he had 14 Promotion Points as of November 2011.  No previous promotion points were indicated on the form.

   d.  Orders Number 279-1302, issued by the U.S. Army Installation Management Command on 5 October 2012, placing him on the TDRL in the retired rank of SGT effective 31 December 2012.  

3.  His records contain a Counseling Statement, dated 5 October 2012, wherein he acknowledged counseling pertaining to the election of his medical separation date from the Army.

4.  He was honorably retired on 30 December 2012, by reason of temporary disability.  He was placed on the TDRL on 31 December 2012.  He was credited with completing 9 years, 8 months, and 15 days of active service.  His DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) – SGT
* Item 4b (Pay Grade) – E-5
* Item 12i (Effective Date of Pay Grade) – 1 September 2005

5.  His records also contain the following:

   a.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) which shows an informal PEB convened on 26 September 2014, and after consideration of clinical records, laboratory findings, x-rays, and physical examinations, found the applicant was diagnosed with post-traumatic stress disorder, degenerative disc disease, and left sinus tarsi syndrome.  The PEB found he was physically unfit with a 60 percent (%) disability rating and recommended his permanent disability retirement.  He concurred with the board’s findings and recommendations and waived his right to a formal hearing and the PEB was approved.  The DA Form 199 shows his rank as SGT.

   b.  A Removal from TDRL Notification memorandum, dated 16 October 2014, wherein he was advised of his removal from the TDRL as a result of his permanent retirement.

   c.  Order Number D-289-66, issued by the U.S. Army Physical Disability Agency on 16 October 2014, removing him from the TDRL on the same date, by reason of permanent disability retirement with a 60% rating.

6.  In an advisory opinion, dated 18 March 2015, the Chief, Department of the Army Promotions, U.S. Army Human Resources Command, stated after a review of the applicant's application it was determined that his request should be disapproved.  The available records of the Junior Enlisted Promotion Section indicated the applicant's promotion records did not reflect any promotion points at the time of his separation.

7.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 25 March 2015 and he did not respond.

8.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contained guidance for preparation of the DD Form 214 and stated that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and were obtained from the Soldier's records (promotion or reduction orders).  Paragraph 2-1(b)3 of Army Regulation 635-5 provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

9.  Army Regulation 600-8-19 (Enlisted Promotions), in effect at the time, set the enlisted promotions and reductions function of the military personnel system. The regulation stated in:

   a.  Paragraph 1-20a – Soldiers who were pending referral to an MOS/Medical Retention Board under Army Regulation 40-400 (Patient Administration) or referral to an Medical Evaluation Board or a PEB under Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation) would not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

   b.  Paragraph 1-20(c) – Under the provisions of Title 10, U.S. Code, section 1372, 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 (Grade on Retirement Physical Disability, Members of the Armed Forces), 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 sections 1201 or 1204 of this title, or whose name is placed on the TDRL under sections 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

* 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
* 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
* 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
* 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 contends that he should have been promoted to SSG/E-6 prior to his separation on 30 December 2012 and his placement on the TDRL.  However, the Junior Enlisted Promotion Section, HRC, found that his promotion records did not indicate any promotion points at the time of his separation.

2.  By law, any member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to the permanent regular grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired.  Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted to the designated grade effective the day before placement on the Retired List.

3.  The available evidence does not show and he did not provide sufficient evidence showing he would have been promoted and/or was on the promotion list (promotable) for pay grade E-6 at the time of his retirement for disability on 30 December 2012.  The available evidence shows in September 2011 he was aware his promotable status had been removed.

4.  The DD Form 214 he was issued on 30 December 2012 appears to correctly show his rank as SGT.  The available evidence shows he held the rank of SGT at the time of his separation.  Therefore, there is insufficient evidence to grant him the requested relief.

5.  There is no evidence to show the applicant performed any period of active duty service following his placement on the TDRL that would have warranted the issuance of another DD Form 214.  The applicant's removal from the TDRL and subsequent permanent retirement has no impact on the DD Form 214 he was issued on 30 December 2012.  A DD Form 214 will not be prepared for Soldiers removed from the TDRL.

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)                                         AR20140021205



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ABCMR Record of Proceedings (cont)                                         AR20140021205



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