IN THE CASE OF:
BOARD DATE: 20 January 2015
DOCKET NUMBER: AR20140006304
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 her record be corrected to show that she was retired in the rank of sergeant major (SGM), pay grade E-9.
2. The applicant states she was on the SGM/E-9 promotion list prior to being retired due to permanent disability on 4 May 2011; therefore, in accordance with regulatory guidance she should have been promoted and placed on the Retired List as a SGM/E-9.
3. She provides a copy of the Puerto Rico National Guard Element, Joint Forces Headquarters, Office of the G1, Enlisted Promotions Board printout.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show she enlisted in the PRARNG on 16 June 1986.
2. Orders D 089-06, issued by the U.S. Army Physical Disability Agency (USAPDA), show she was honorably retired in the rank/grade of master sergeant (MSG)/E-8 on 3 May 2011, by reason of physical disability and placed on the Retired List the following day.
3. An advisory opinion was obtained in the processing of this case from the Chief, Personnel Policy Division, National Guard Bureau (NGB). This official stated the documentation provided by the applicant was sufficient evidence to show she was on a standing promotion list and should have been promoted at the time of her disability retirement in accordance with the Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20c.
4. The official recommended that the State should cut the promotion order effective the day before her retirement and the USAPDA should amend the disability retirement order to show the higher rank. The concurrence of this opinion was coordinated with the NGB Retirement Services Branch and the NGB Enlisted Policy Branch. The Puerto Rico Army National Guard also concurred with this recommendation.
5. On 8 October 2014, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal. No response was received.
6. She provided a promotion standing list which shows she was eligible for promotion to SGM/E-9 as of the Fiscal Year 2010 Promotion Board.
7. Army Regulation 600-8-19, paragraph 1-20a specifies that Soldiers pending referral to a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) will not be denied promotion, if already promotable, on the basis of medical disqualification if they are otherwise qualified for promotion. Paragraph 1-20c specifies that per 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. 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 name was placed on the TDRL or on the date when retired, or (2) the highest temporary grade in which he served satisfactorily, (3) the permanent regular grade to which he would have been promoted had it not been for the physical disability for which he is retired, (4) the temporary grade to which they would have been promoted had it not been for the physical disability for which they are retired.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows she was in a promotable status on 3 May 2011 when she was retired and placed on the Retired List.
2. Title 10, U.S. Code, section 1372, specifies 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 they would have been promoted had it not been for the physical disability for which they are retired.
3. Army Regulation 600-8-19, paragraph 1-20a specifies that 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. Therefore, she is entitled to correction to her record to show she was promoted to SGM/E-9 with a date of rank and effective date of 3 May 2011 and retroactive payment of all pay due as a result of this correction.
4. In view of the above, her request should be granted.
BOARD VOTE:
___x____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 publishing orders promoting her to the retired rank/pay grade of SGM/E-9 with a date of rank and effective date of 3 May 2011; amending her retirement orders to show she was placed on the Retired List in the grade of E-9; and paying her all 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.
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