IN THE CASE OF: BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014714 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014714 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014714 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 was placed on the Temporary Disability Retired List (TDRL) in the rank/grade of Sergeant (SGT)/E-5 vice Specialist (SPC)/E-4. 2. The applicant states he should have been promoted to the rank of SGT/E-5. He was medically discharged with retired pay and unsure of what caused the error. 3. The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214) and a memorandum, subject: Referral to Physical Evaluation Board – SGT [Applicant], dated 28 March 2014. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 5 May 2008 in the delayed entry program. 2. He entered active duty on 28 May 2008. He was promoted to SPC/E-4 on 14 December 2009. He completed the Warrior Leaders Course on 21 April 2011. He served nine months in Afghanistan and twelve months in Iraq. 3. The applicant was extended on active duty on 28 April 2014 at the convenience of the government to complete the Physical Evaluation Board (PEB) process. The board considered his medical condition, rated his disability and recommended he be placed on the TDRL. 4. On 16 December 2014, Headquarters, U.S. Army North, published Orders 350-1149 separating him on 19 December 2014. He was placed on the TDRL in his retired rank/grade as SPC/E4. His effective date of pay grade was 14 December 2009. He completed 6 years, 6 months, and 22 days of military service at the time of retirement. 5. There is no entry in the promotion point data on his enlisted record brief (ERB). 6. There is evidence the applicant was flagged by Department of the Army (DA) promotions for army physical fitness test (APFT) failure. 7. In an undated memorandum signed by the commander CPT MB, the applicant was disqualified from receiving the Army Good Conduct Medal. 8. His DD Form 214 shows in items 4a (Grade, Rate or Rank) and 4b (Pay Grade) that he retired as a SPC/E4. REFERENCES: 1. Army Regulation 600-8-19 (Enlisted Promotions and Reduction) 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. The available records do not show the applicant being on a promotion list at the time of his separation. 2. 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 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: 1. The evidence of record shows the applicant was promoted to rank/grade of SPC/E4 effective 14 December 2009. There is no evidence indicating the applicant was ever on a promotion list or promoted to SGT/E-5. 2. Title 10, U.S Code 1372, states Soldiers on a promotion list who are retired for physical disability (10 USC 1201 or 1204) or who are placed on the TDRL (10 USC 12 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade. The enlisted members are entitled to receive retired pay in the highest grade held satisfactorily while on active duty or in an active reserve status. The applicant held the rank/grade of SPC/E-4 for over 5 years. There is no evidence indicating his service in that grade was unsatisfactory. 3. He was not on a promotion list at the time of disability retirement, he did not meet the statutory or regulatory requirements to be placed on the TDRL in the higher grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014714 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014714 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2