IN THE CASE OF: BOARD DATE: 29 October 2015 DOCKET NUMBER: AR20150001918 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 promotion to the rank/pay grade of lieutenant colonel (LTC)/O5 and placement on the retired list in that grade. 2. The applicant states on 22 May 2010 he should have been promoted to the rank of LTC. On 27 May 2010, he was medically retired from the Army in the rank of major (MAJ). The orders which promoted him to LTC were dated 27 August 2010, 3 months past his retirement. There is a difference in pay and allowances for him being retired as a MAJ rather than as a LTC. 3. The applicant provides a copy of Orders Number B-06-057824. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are sufficient bases to waive the statute of limitations. 2. The applicant's military records show he enlisted in the District of Columbia Army National Guard (DCARNG) on 1 April 1987, with prior Regular Army enlisted service. He was honorably discharged from the DCARNG on 9 July 1988, for the purpose of accepting an appointment as a commissioned officer. 3. He was appointed in the DCARNG, as a second lieutenant, on 10 July 1988. He was promoted to MAJ with an effective date and date of rank (DOR) of 19 June 2002. 4. On 24 May 2007, he was issued a Notification of Eligibility for Retired at Age 60 (20-Year Letter). 5. He entered active duty on 7 October 2006 in support of Operation Enduring Freedom. He served in: * Afghanistan from 21 March 2007 through 3 June 2007 * Iraq from 6 June 2007 through 1 March 2008 6. He was honorably released from active duty on 29 March 2008 and he was transferred to a Reserve unit. 7. He again entered active duty on 19 September 2008 for the purpose of post service benefits and entitlements. 8. On 6 January 2010, an informal Physical Evaluation Board (PEB) convened and considered his conditions of traumatic brain injury (TBI) and chronic post-traumatic stress disorder (PTSD). The PEB found him physically unfit and recommended his placement on the Temporary Disability Retired List (TDRL) with a combined rating of 90 percent (%). He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. The PEB was approved on 22 January 2010. 9. Orders Number 090-0001, issued by US. Army Garrison, Fort Belvoir, VA on 31 March 2010, retired him effective 27 May 2010 and placed him on the TDRL effective 28 May 2010. The orders show his grade as MAJ. 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period lists in: * Item 4a (Grade, Rate, or Rank) – MAJ * Item 4b (Pay Grade) – O4 * Item 12i (Effective Date of Pay Grade) – 2 April 2005 11. He provided a copy of Orders Number B-06-057824, issued by the U.S. Army Human Resources Command (HRC) on 27 August 2010, promoting him to LTC with an effective date and DOR of 22 May 2010. 12. An informal TDRL PEB convened on 18 June 2014 and found his TBI and PTSD conditions remained unfitting and they were considered stable for rating. The PEB recommended his permanent disability retirement was a rating of 80%. He concurred with the findings and recommendations of the PEB and the PEB was approved on 11 August 2014. 13. The U.S. Army Physical Disability Agency (USADPA) issued the following orders : * Order Number D216-64 on 4 August 2014 removing him from the TDRL for permanent disability retirement effective the same day; the orders show his grade as MAJ * Order Number D329-07 on 25 November 2014 amending Order Number D216-64; the orders show his grade as MAJ 14. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), in effect at the time, prescribed policy and procedures used in the selection and promotion of commissioned and warrant officers of the USAR. Table 2-1 (Time in Grade Requirements for Commissioned Officers Other than Commissioned Warrant Officers) outlined the service requirements for promotion and specified the maximum years in the lower grade for mandatory promotion to LTC was 5 years. Mandatory selection boards would convene each year to consider Army Reserve officers in an active status for promotion to captain through LTC. 15. Army Regulation 135-155, paragraph 2-5, stated to be eligible for promotion to the next higher grade, a Reserve officer must have continuously performed either on the Reserve Active Status List or the Active Duty List during the 1-year period ending on the convening date of the promotion board and must meet the time-in-grade requirements as appropriate. 16. Title 10, U.S. Code, section 1372 (Grade of retirement for physical disability: members of the Armed Forces) 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 TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he was retired and which was found to exist as a result of physical examination. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was serving on active duty as a MAJ, with a date of rank of 19 June 2002, when he sustained medical conditions related to combat and when he was selected for promotion in the Reserve to LTC in 2010. A PEB recommended his placement on the TDRL and he was retired accordingly on 27 May 2010. Orders Number 090-0001 and his DD Form 214 show his grade as MAJ. Item 12i of this DD Form 214 shows a DOR of 2 April 2005. 2. HRC published orders on 27 August 2010 promoting him to LTC with an effective date and DOR of 22 May 2010. This is the correct grade at the time he was placed on the TDRL. 3. A PEB convened in June 2014 found his medical conditions remained unfitting and recommended his permanent disability retirement. The USAPDA issued orders permanently retiring him effective 4 August 2014. The orders show his grade as MAJ. 4. By law, he was entitled to placement on the TDRL and permanent retirement in the rank/grade of LTC/O-5. He should also receive all back pay and allowance he may be due from 27 May 2010. BOARD VOTE: ___x____ ____x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 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 records of the individual concerned be corrected by: * amending Orders Number 090-0001 to show he was placed on the TDRL in the grade of LTC * amending his DD Form 214 to show in: * Item 4a – LTC * Item 4b – O5 * Item 12i – 2002-06-19 * amending Orders Number D216-64 and D329-07 to show he was permanently retired in the grade of LTC on 4 August 2015 * paying him all back pay and allowances he is due from 27 May 2010 as a result of these corrections ___________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. ABCMR Record of Proceedings (cont) AR20150001918 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001918 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1