ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170009855


APPLICANT REQUESTS:  his rank/grade be corrected from Specialist (SPC)/E-4 to Sergeant (SGT)/E-5

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states his records show he was separated as a SPC/E-4 rather than a SGT/E-5.  He believes the mistake may have happened because he was promoted during the time he was going through the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process and his record did not get updated in time.  

3.  A review of the applicant’s service record shows:

     a.  He enlisted in the Regular Army on 19 September 2002.

     b.  Orders 189-0106, dated 8 July 2011, directed the applicant’s placement on the Temporary Disability Retired List (TDRL) with an effective date of 27 September 2011 in the rank/grade of SPC/E-4.

     c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), dated    26 September 2011, honorably retired the applicant by reason of disability.  It contains the following information:

* item 4a (Grade, Rate or Rank), SPC
* item 4b (Pay Grade), E04
* item 18 (Remarks), notes among other entries, “Retired List Grade SGT”
     d.  On 17 February 2015, a PEB convened and recommended he be placed on the Permanent Disability Retired List (PDRL).

     e.  Order D 069-49, dated 10 March 2015, removed him from the TDRL and placed him on the PDRL in his current grade of rank.

4.  By regulation, at the time of applicant’s placement on the TDRL, Soldier’s with promotions pending, but prevented due to disability were not promoted.  They were retired or separated at the active duty rank and pay grade held at the time of separation, but placed on the retired list at the higher grade for purposes of calculating disability separation or retirement pay.  Army policy and regulation now permit promotion prior to separation in these cases.      

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was warranted.  Based upon the remarks section of the currently DD Form 214 of the applicant, the Board recommended that the applicant’s PDRL orders be amended to reflect the rank of SGT.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant’s PDRL orders to reflect his retired rank as Sergeant/E5.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Title 10, USC, section 1372, “Grade on retirement for physical disability:  members of armed forces” states, in pertinent part, 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, or whose name is placed on the temporary disability retired list (TDRL), is entitled to the grade equivalent to the highest of the following:

     (1)  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.

     (2)  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.

     (3)  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 physical examination.

     (4)  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.    

3.  Army Regulation (AR) 635-8 (Personnel Separations—Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management.  It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition.  This regulation explains separation document preparation, distribution, correction, and transition processing specific to the Disability Evaluation System.

     a.  Paragraph 6-7, “Policy concerning pending promotion or automatic advancement in grade” states:

     b.  Consistent with Title 10, USC, 1372, enlisted Soldiers who are on a promotion list when retired for physical disability or who are placed on the TDRL will be retired for disability at the promotion list grade.  The enlisted Soldier will be promoted to the designated grade effective the day before placement on the retired list regardless of the cut-off scores, sequence numbers, or position availability.  In all cases, the Soldier must otherwise be fully eligible for promotion.  

     c.  Consistent with Title 10, USC, section 1212, enlisted Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective on the Soldier’s separation date.

     d.  The guidance in paragraph a and b also pertains to Regular Army enlisted Soldiers who have reached the time in grade requirements for the next level of automatic promotion (private enlisted two to specialist).  







ABCMR Record of Proceedings (cont)	 AR20170009855


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