IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150002360 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 IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150002360 BOARD DETERMINATION/RECOMMENDATION: USE THE FOLLOWING PARAGRAPH TO GRANT RELIEF. The Board determined the evidence presented is 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 to show he was placed on the retired list as a sergeant first class, paygrade E-7. ____________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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150002360 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 retirement as a sergeant first class (SFC), pay grade E-7. 2. The applicant states a packet was sent up from his Physical Disability Evaluation Board Liaison Officer (PEBLO) in May 2014; nothing has been heard since. 3. The applicant provides copies of: a. His DD Form 214 (Certificate of Release or Discharge from Active Duty); and b. orders for award of the Army Commendation Medal, mobilization orders, and his promotion orders showing his rank as SFC. CONSIDERATION OF EVIDENCE: 1. The applicant served briefly in the Army National Guard in 1984. He was in the Regular Army from August 1985 to February 1992 and then he joined the U.S. Army Reserve (USAR). 2. He was promoted in the USAR to SFC, pay grade E-7, with an effective date and a date of rank on 26 February 1996. He was mobilized and served on active duty as a USAR SFC from September 2005 to October 2006. 3. On 5 January 2007 the applicant again enlisted in the Regular Army. Page 4 of his DD Form 1966 (Record of Military Processing) indicates he enlisted as a staff sergeant (SSG) because there were no SFC vacancies in his military occupational specialty (MOS). 4. U.S. Army Maneuver Support Center of Excellence, Fort Leonard Wood, Missouri orders 195-1326, of 14 July 2014: a. Ordered the applicant retired due to physical disability in pay grade E-6; b. listed his retired “grade of rank” as SSG; and c. cited “Other eligible laws: 1372.” 5. His 29 September 2014 DD Form 214 shows he was retired due to physical disability. 6. There is no information relating to his physical disability processing in the available records. 7. His Official Military Personnel File (OMPF) contains two copies of his Enlisted Record Brief (dated 13 July 2014 and 30 September 2014). Both show his date of rank as a SSG as 12 November 1983. Neither shows any indication that he ever served as a SFC. 8. There is no available evidence that the Army Grade Determination Review Board (AGDRB) ever received a package from the PEBLO. By the time this request was received at the Army Review Boards Agency on 12 February 2015 that board could not review his case because he had already been separated from active duty. REFERENCES: 1. Army Regulation 15-80, (AGDRB Determinations) provides the guidance for determining the grade of Soldiers in certain situations: a. Paragraph 2-3 states that most grade determinations do not require action by the AGDRB or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation. For example, under section 3961(b), Title 10, United States Code, an enlisted soldier will normally retire at the grade held on the date of retirement. Under 10 USC 1370, an officer will normally retire at the highest grade served, unless service at that grade is deemed unsatisfactory, or the officer failed to meet statutory time in grade requirements. Circumstances requiring referral for discretionary grade determinations are discussed in chapters 3 and 4. b. Paragraph 2-10 provides that when a Soldier, retiree or other former Soldier believes that an error or an injustice has occurred with respect to their pay grade determination they can apply to the Army Board for Correction of Military Records (ABCMR). c. Paragraph 3–3, applies specifically to physical disability cases and provides that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, Title 10, United States Code (USC)). 2. Title 10, USC, provides that: a. Section 1201 prescribes the procedures for determining physical disability. b. Section 1212 applies to pay grade determination for Soldiers separated for disability with severance pay. c. Section 1372 provides 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 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: (1) The grade or rank in which they are serving on the date placed on the temporary disability retired list or, on the date when retired. (2) The highest temporary grade or rank in which they served satisfactorily, as determined by the Secretary of the armed force from which they retired. (3) The permanent regular or reserve grade to which they would have been promoted had it not been for the physical disability. (4) The temporary grade to which they would have been promoted had it not been for the physical disability for which 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. 3. Army Regulation 635–8 (Separation Processing and Documents) provides the guidance for preparation of separation documents. a. The directions for completing blocks 4a and 4b state, to verify that active duty grade or rank and pay grade are accurate at time of separation. b. Chapter 6 applies to processing Soldiers for physical disability and states that the U.S. Army Physical Disability Agency (USAPDA) will initiate discretionary grade determinations conducted by the AGDRB when an enlisted Soldier being separated due to disability is not serving at his or her highest grade held. The AGDRB will determine the highest grade satisfactorily held under the provisions of Title 10 USC 1372, which will be used in the calculation of retired pay or disability severance pay DISCUSSION: 1. The applicant requests retirement as a SFC, pay grade E-7. 2. The applicant’s DD form 214 is correct. It lists his rank as SSG and his pay grade E-6 because this was his status on the date he was released from active duty. 3. However, he served successfully as a USAR SFC from 26 February 1996 to 5 January 2007, including a period of active duty from September 2005 to October 2006. 4. On 5 January 2007 he voluntarily gave up his rank to again enlist in the Regular Army. He entered as an SSG because there were no SFC vacancies in his MOS. 5. The applicant believed that his PEBLO submitted his case to the AGDRB but there is no available evidence of what happed to said submission. By the time he applied, the AGDRB could not consider his case because he was already retired. Had that board considered his case it would have fulfilled the Secretarial function provided under Title 10, USC, section 1372. 6. He is eligible as a matter of law to have his retired rank and pay grade changed to SFC, E-7. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002360 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002360 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2