BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160000371 BOARD VOTE: ____x_____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160000371 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 and Army National Guard records of the individual concerned be corrected by: * issuing promotion orders showing he was promoted to SGM/E-9 with an effective date and a date of rank of 4 October 2015 * amending Orders D243-20, issued by the U.S. Army Physical Disability Agency on 31 August 2015, to show he was placed on the permanent disability retired list in the grade E-9, effective 4 October 2015 * amending his State retirement orders * amending his NGB Form 22 to show his rank and grade as SGM/E-9 with a date of rank of 4 October 2015 * paying him any back retired pay he is 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. BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160000371 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 sergeant major (SGM)/E-9 instead of master sergeant (MSG)/E-8. 2. The applicant states he served in the North Carolina Army National Guard (NCARNG) and he was on the NCARNG promotion list at the time he was permanently retired for disability. According to Title 10, U.S. Code (USC), section 1372 and Military Personnel (MILPER) Message Number 13-106 (Enlisted Promotion Clarification for Soldiers in the Disability Evaluation System), dated 18 April 2013, he should have been promoted to SGM/E-9 on 3 October 2015. Once he realized the error, he made several attempts to get his record corrected through his last unit of assignment; however, once a Soldier is out, no one seems to give him/her consideration. He understands his promotion will have no effect on retired pay. 3. The applicant provides: * Enlisted Record Brief and Biographical Sketch * Orders D 243-20 dated 31 August 2015 (retirement orders) * Orders 258-945 dated 15 September 2015 (NCARNG discharge orders) * ARNG Senior Enlisted Promotion List dated 27 March 2015 * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) * National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the NCARNG on 9 May 1988 and he held military occupational specialty (MOS) 52D (Power Generation Equipment Repairer). He served through multiple extensions in a variety of assignments. 2. He was promoted to MSG/E-8 on 26 January 2010 and held MOS 91Z (Mechanical Maintenance Supervisor). 3. He was ordered to active duty (mobilization) on 28 October 2011 and subsequently served in Kuwait from 9 December 2011 to 21 October 2012. 4. He was honorably released from active duty on 17 November 2012 by reason of completion of his required service and transferred to the control of his State ARNG. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period listed his rank/grade as MSG/E-8. 5. In early 2015, he entered the Integrated Disability Evaluation System (IDES) and on 21 July 2015, the Department of Veterans Affairs after evaluation proposed his disability ratings. 6. On 15 August 2015, a Physical Evaluation Board (PEB) convened and determined he was physically unfit for various conditions with onset occurring in 2012 while deployed to Kuwait. The PEB recommended a combined disability rating of 60 percent and permanent disability retirement. 7. On 31 August 2015, U.S. Army Physical Disability Agency published Orders D243-20 ordering his release from assignment and duty because of physical disability incurred while entitled to basic pay and placing him on the retired list in the rank/grade of MSG/E-8, effective 5 October 2015. The statute authorizing retirement is shown as Title 10, USC, section 1204. 8. He was honorably retired on 4 October 2015 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability and placed on the retired list on 5 October 2015. His NGB Form 22 shows he completed 27 years, 4 months, and 26 days of ARNG service. This form also shows in: * item 5a (Rank) – MSG * item 5b (Pay Grade) – E-8 * Item 6 (Date of Rank) – 20100126 9. He provides a Biographical Sketch and: a. An ERB that shows he was assigned to Headquarters and Headquarters Company, 113th Sustainment Brigade, NCARNG. b. DA Form 7652, dated 13 March 2015, wherein his commander answered in the positive to the question "If an enlisted Soldier, is the Soldier on a semi-centralized or centralized promotion list?" c. NCARNG Senior Enlisted Promotion List, dated 27 March 2015, shows he was number 99 on the Promotion Order of Merit List to SGM/E-9. 10. An advisory opinion was received from the NGB on 3 March 2017 in the processing of this case. An advisory official recommended approval of the applicant's request. The advisory official stated: a. The applicant was evaluated through IDES. The PEB found his conditions unfitting and recommended a permanent physical disability rating of 60 percent. He was placed on the retired list in the rank of MSG effective 5 October 2015. He provides a DA Form 7652. Item 11 of this form notates the applicant was on a promotion list. Additionally, he provides documents reflecting at the time of retirement he was on a senior promotion list for the NCARNG for promotion to the rank of SGM. b. Title 10, USC, section 1372, explains a service member is entitled to a higher retired grade and will be placed on the retired list in the grade to which he or she would have been promoted had it not been for the physical disability for which he or she was retired. c. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20, states Soldiers in the disability evaluation system process who are pending a medical fitness determination (referral to a medical evaluation board under Army Regulation 40-400 (Patient Administration), or PEB under Army Regulation 635-40 remain otherwise eligible for promotion consideration, selection, and pin-on. The issuance of a permanent profile of "3" or "4" alone will not be used as the sole basis for determining primary MOS disqualification. No Reserve Component Soldier who is in the disability evaluation system process will lose his or her promotable status solely because a promotion list expires prior to a vacancy for promotion becoming available. d. Per the provisions of Title 10, USC, section 1372, Soldiers on a promotion list who are retired for physical disability (Title 10, USC, section 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (Title 10, USC, section 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be fully eligible for promotion (in accordance with paragraph 1-10 of AR 600-8-19). e. In accordance with Army Regulation 600-8-19, the Soldier was fully eligible for promotion at the time of his medical retirement. Therefore, it is the recommendation of this office for the board to approve the Soldier's request to be retired at the rank of SGM. This advisory opinion was coordinated with the Army National Guard Enlisted Policy Branch. The NCARNG concurs with this recommendation 11. The applicant was provided with a copy of this advisory opinion. He concurred. REFERENCES: 1. 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. 2. Title 10, USC, 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 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: 1. The applicant served in the ARNG from 9 May 1988 to 4 October 2015. He held the rank/grade of MSG/E-8 at the time of his retirement by reason of disability. He provides evidence that he was a promotable MSG/E-8 prior to his retirement. His commander also confirmed he was on a promotion list. 2. His retirement orders should have reflected the rank/grade of SGM/E-9. By law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of Title 10, USC, is entitled to the grade equivalent to 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. Further, regulation states promotion to the next higher rank will be effective one day prior to placement on the permanent disability retired list. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000371 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000371 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2