IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009660 


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 retired by reason of physical disability in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. 

2.  The applicant states he feels he should have been promoted to SSG/E-6 on 11 February 2013.  He retired by the physical evaluation board (PEB) process on 12 February 2013.  According to Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 30 April 2010, paragraph 1-20(c), "Promotion of Soldiers pending referral to a Military Occupational Specialty Medical Retention Board, medical evaluation board, or PEB...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.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list."  He was on the E5-E6 promotion list for the Pennsylvania Army National Guard (PAARNG), dated 10 April 2012, which was in effect at his time of retirement; therefore, he feels that he should have been promoted.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Physical Disability Retirement Orders 08-03, dated 8 January 2013
* Notification of PEB and DA Form 199 (Informal PEB Proceedings)
* Department of Veterans Affairs rating decision
* 2012 PAARNG Promotion Eligibility List (PEL) for SGT to SSG
CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the PAARNG on 6 March 2004 and he held military occupational specialty 11B (Infantryman).  He was promoted to SGT/E-5 on 14 September 2005.  He served through multiple extensions in a variety of assignments.

2.  He entered active duty on 4 January 2005 and subsequently served in Iraq from 26 June 2005 to 12 June 2006.  He was honorably released from active duty to the control of his State ARNG on 12 July 2006.

3.  It appears at some stage in 2012, he entered the Army physical disability evaluation system (PDES).  On 15 December 2012, an informal PEB convened and found his medical conditions of post-traumatic stress disorder; right lower extremity, radiculopathy; left lower extremity, radiculopathy; and lumbosacral spine broad-band disc herniation, prevented him from performing the duties required of his grade and specialty and determined he was physically unfit. 

4.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 70-percent combined disability rating.  The PEB recommended his permanent retirement.  He concurred.

5.  On 8 January 2013, the U.S. Army Physical Disability Agency published Orders 08-03 ordering his placement on the permanent retired list in his retired grade of SGT effective 12 February 2013.  The standard name line listed his rank as "SGT."

6.  He retired on 11 February 2013 by reason of physical disability.  His NGB Form 22 shows in:

* item 5a (Rank) "SGT"
* item 5b (Pay Grade) "E-5"
* item 6 (Date of Rank) "2005-09-15"

7.  He provides a memorandum, issued by PAARNG on 10 April 2012, Subject: 2012 Promotion Eligibility List (PEL) for SGT/SSG.  This memorandum contains the entry "Expires 9 April 2013."  The memorandum lists Soldiers by their three digit MOS, based on points earned, from the highest to the lowest.  Names identified on the list are eligible for vacancy promotions.  The applicant's name is listed as number 173 out of 185 for his MOS, with 326 points. 

8.  On 18 December 2014, by email, the PAARNG Boards Branch Chief confirmed that the applicant was on a PEL and eligible for promotion prior to his discharge.

9.  Army Regulation 600-8-19 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 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: 

* 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
* 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:

The applicant was a promotable SGT/E-5 at the time of his disability processing and retirement.  By law and regulation, 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.  Therefore, he is entitled to correction of his retirement orders to show he was placed on the Retired List in the rank/grade of SSG/E-6 effective 11 February 2013 with entitlement to back pay and allowances. 

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:

* promoting him to staff sergeant/E6 effective 11 February 2013
* amending Orders 08-03, issued by the U.S. Army Physical Disability Agency on 8 January 2013 to show his retired grade as E-6
* payment of any 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)                                         AR20140009660



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