ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 December 2019

	DOCKET NUMBER:  AR20170015392


APPLICANT REQUESTS:  

*	correction of his Army records and DD Form 214 (Certificate of Release or 
Discharge from Active Duty) to show he was retired in the rank/pay grade of 
staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5
*	entitlement to back pay and allowances in the rank of SSG from 1 August 
2012 to 23 July 2013

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Standard Form (SF) 600 (Health Record – Chronological Record of Medical 
Care)
*	Department of Veterans Affairs (VA) Form 21-0819 (VA/DOD Joint Disability 
Evaluation Board Claim)
*	three Monthly SGT/SSG Promotion Selection By-Name Lists
*	DD Form 2870 (Authorization for Disclosure of Medical or Dental Information
*	Joint DOD/VA Disability Evaluation Pilot Referral
*	DA Form 7652 (Physical Disability Evaluation System (PDES) Commander’s 
Performance and Functional Statement)
*	Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 
1-20

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 (ABCMR) 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:

	a.  He would like his promotion to the rank/pay grade of SSG/E-6 be honored 
because a great injustice was committed against him.  Army Regulation 600-8-19 
states, Soldiers in the PDES are entitled to promotion while in the program.  He 
believes he was removed from the C-10 Roster in error.  His promoted to SSG was 
never granted when he was referred to the Medical Evaluation Board (MEB).  He 
made the cut-off for SSG after he was assigned to the PDES.  His date of rank 
(DOR) was 1 August 2012.  He was unaware that this injustice could be rectified.  
His unit was aware of this and did nothing.  He was told he did not need the 
promotion because he was being discharged.

	b.  He has been attempting to rectify this injustice against him.  Currently, he has 
the evidence he hopes to have the injustice resolved.  

3.  The applicant provides copies of the following:

	a.  An SF 600 showing he received medical treatment on 15 June 2012 for 
bilateral foot pain, tendonitis Achilles.  He stated he was unable to jog, march, ruck, 
and run without significant pain.

	b.  VA Form 21-0819, dated 13 July 2012, showing he was referred to an MEB 
for plantar fasciitis and retrocalcaneal heel spurs.

	c.  Three Monthly SGT/SSG Promotion Selection, By Name, Lists, dated 25 July 
and 12 August 2012, showing he was selected for promotion to SSG with a DOR of 
1 August 2012.

	d.  DA Form 7652, dated 21 August 2012, wherein his commander states he was 
due an automatic promotion on 1 August 2012.

4.  A review of the applicant's military record shows: 

	a.  He enlisted in the Regular Army on 1 April 1996 and he held military 
occupational specialty 91P (Artillery Mechanic).  He served continuously on active 
duty through four reenlistments.  He served in:

*	Iraq from 5 April 2003 to 31 March 2004 and from 25 November 2005 to 
11 November 2006
*	Afghanistan from 21 July 2010 to 10 July 2011.

	b.  His record does not include and he did not provide a Narrative Summary or 
MEB Proceedings.  However, the available record contains a Physical Evaluation 
Board (PEB) Proceedings, which shows an informal PEB convened on 19 April 
2013.  The PEB found him physically unfit for several medical conditions and 
recommended his permanent disability discharge with a rating of 30 percent.  He 
concurred with the findings and recommendations of the PEB and waived his right to 
a formal hearing.  The PEB was approved on 30 April 2013.

	c.  Orders Number, issued by Headquarters, U.S. Army Garrison, Fort Carson, 
CO on 2 May 2013, announced his placement on the retired list, in the rank of SGT, 
effective 24 July 2013.

	d.  He was honorably retired on 23 July 2013, by reason of permanent disability.   
His DD Form 214 shows he completed 17 years, 3 months, and 23 days of net 
active service.  This form also shows in:

*	Item 4a (Grade, Rate, or Rank) – SGT
*	Item 4b (Pay Grade) – E-5
*	Item 12i (Effective Date of Pay Grade) – 1 May 2006

5.  By Army Regulation 600-8-19, 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.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the 
relief was warranted.  The applicant contentions were carefully considered.  The 
Board found sufficient evidence to warrant relief in this case.  The applicant was 
promoted to SSG during his PEB processing, and was medically retired before his 
effective date.  However, the Board agreed that pursuant to regulatory guidance, the 
applicant was entitled to his promotion to SSG with an effective date of 1 August 
2012 and should receive all and all back pay as a result of this correction and audit 
by the Defense Finance and Accounting Service.   

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:

1.  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 showing:
 
a.	He was selected and promoted to the rank of SSG/E-6 with a DOR of 
1 August 2012. 

b.	Amend his DD Form 214 to show in:

*	Item 4a (Grade, Rate, or Rank) – SSG
*	Item 4b (Pay Grade) – E-6
*	Item 12i (Effective Date of Pay Grade) – 1 August 2012

c.	The applicant is entitled to any back pay and/or allowances, if warranted, 
upon a full pay audit by the Defense Finance and Accounting Service, due to the 
aforementioned corrections.


	  
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, U.S. Code (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 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.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the 
promotion and reduction of enlisted Soldiers.  Paragraph 1-20(c) states per the 
provisions of Title 10, USC, 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.

3.  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: 

*	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

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170015392

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