BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001703 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 BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001703 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 Army National Guard and Department of the Army records of the individual concerned be corrected by: * issuing promotion orders showing he was promoted to SGM/E-9 with an effective date and a date of rank of 18 May 2015 * amending Orders Number D 104-02, issued by the U.S. Army Physical Disability Agency on 14 April 2015, to show he was placed on the retired list in the rank/pay grade of sergeant major (SGM)/E-9 * amending Orders Number 154-130, issued by the Michigan Army National Guard on 3 June 2015, to show he was placed on the State military retired list in the retired rank/pay grade of SGM/E-9 * amending his NGB Form 22 to show his rank and grade as SGM/E-9 with a date of rank of 18 May 2015 * paying him any back retired pay he is due as a result of this correction __________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. BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001703 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, in effect, correction of his records to show he was permanently retired for disability in the rank/grade of sergeant major (SGM)/E-9 instead of master sergeant (MSG)/E-8. 2. The applicant states he was found unfit by an informal physical evaluation board (PEB) and placed on the permanent disability retired list (PDRL) with a rating of 80 percent (%) on 18 May 2015. He is requesting promotion to SGM pursuant to Title 10, U.S. Code (USC), section 1372, because he was on the SGM/E-9 promotion list. During the medical evaluation process he was removed from the Michigan Army National Guard's (MIARNG) promotion list. Approximately 2 months prior to his retirement, he signed documents removing himself from the promotion list. However, he was not informed nor counseled that removal from the list would mean he was ineligible for promotion upon being medically retired. Had he known he was ineligible for the promotion he would not have signed the documents. He is a graduate of the U.S. Army Sergeants Major Academy, he served as the acting 415th Civil Affairs Battalion Command SGM for 2 years, (one during deployment to Iraq in 2004), and he has been on the promotion list for numerous years. 3. The applicant provides copies of the following: * three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) * Bronze Star Medal and Meritorious Service Medal Certificates * DA Form 1059 (Service School Academic Evaluation Report) * MIARNG Fiscal Year 2015 (FY15) Enlisted Promotion Memorandum of Instruction * MIARNG Recommendation for Correction of Military Records memorandum, dated 8 December 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the MIARNG on 7 November 1986 and he held military occupational specialty (MOS) 11B (Infantryman) and then MOS 95B (Military Police). He was honorably discharged from the MIARNG on 25 May 2000, for enlistment in any component of the Armed Forces. 2. He reenlisted in the U.S. Army Reserve (USAR), in pay grade E-7, on 26 May 2000. He was promoted to master sergeant (MSG)/E-8 on 1 December 2002 and awarded primary MOS 38A (Civil Affairs). He was transferred to the USAR Control Group and then reenlisted in the MIARNG. 3. He provided copies of the following: * three DA Forms 2166-8; for the periods ending on November 2003, November 2004, and November 2005, respectively; showing he received ratings of excellent, successful, and among the best * two certificates, dated 13 September 2004 and 13 June 2007, awarding him the Bronze Star Medal and Meritorious Service Medal, respectively, for exceptionally meritorious service during Operation Iraq Freedom and serving as the Command SGM * DA Form 1059, dated 19 June 2008, showing he successfully completed the Sergeants Major Course 4. He entered active duty in support of Operation Enduring Freedom on 14 May 2010. He served in Afghanistan from 7July 2010 to 4 May 2011. He was honorably released from active duty on 16 June 2011 and he was transferred to MIARNG. 5. He again entered active duty in support of Operation Enduring Freedom on 16 October 2011. He served in Afghanistan from 28 January to 20 September 2012. He was released from active duty on 23 November 2012 and he was transferred to the MIARNG. 6. On 15 March 2015, an informal PEB found him physically unfit due to numerous unfitting medical conditions. The PEB recommended his permanent disability retirement with a combined rating of 80%. He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. The PEB was approved on 20 April 2015. 7. Orders Number D-104-02, issued by the U.S. Army Physical Disability Agency on 14 April 2015, placed him on the retired list in pay grade E-8 effective 19 May 2015. 8. He was honorably retired from the MIARNG on 18 May 2015 by reason of permanent disability. He was credited with completing over 34 years of total service for retired pay. His National Guard Bureau (NGB) Form 22 (Report of Service and Report of Separation) lists in: * Item 5a (Rank) – MSG * Item 5b (Pay Grade) – E-8 * Item 6 (Date of Rank) – 1 December 2002 9. He also provided a copy of the MIARNG FY15 Enlisted Promotion Memorandum of Instruction, dated 18 September 2014. 10. Orders Number 154-130, issued by the MIARNG on 3 June 2015, placed him on the State military retired list in the retired grade of first sergeant effective 19 May 2015. 11. He further provided a memorandum, dated 8 December 2015, wherein the MIARNG G1 SGM recommended approval of the applicant's request for correction of his military records. He stated the applicant was placed on the PDRL on 18 May 2015. Unfortunately, during the applicant's medical evaluation process, he was not properly counseled by the full-time unit administrative staff on his election for promotion consideration during the FY15 Enlisted Promotion Board. Due to the lack of proper guidance, the applicant elected not to be considered for promotion that essentially prevented him from obtaining the rank/grade of SGM/E-9 upon his medical retirement. As indicated in Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20e, "Soldiers on a promotion list who are retired for physical disability will be retired at the promotion list grade. The Soldier will be promoted effective the day before placement on the retired list." 12. In an advisory opinion, dated 7 February 2017, the Deputy Chief, Personnel Policy Division, NGB, stated: a. During the FY15 Enlisted Promotion Board, the applicant was improperly counseled by his full-time unit administrative staff regarding his election not to be considered (reconsidered) for promotion. Throughout that time period, the applicant was also undergoing the Integrated Disability Evaluation System (IDES) that placed him on the PDRL on 18 May 2015. According to Title 10, USC, section 1372, the applicant was entitled to the grade equivalent to 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 he was found to exist as a result of a physical disability. Additionally, AR 600-8-19, reinforces the applicant's promotion eligibility during the IDES process and promotion to SGM upon retirement. b. The applicant also completed the U.S. Army Sergeants Major Course on 19 June 2009, an educational requirement for promotion, in accordance with AR 600-8-19, paragraph 1-27. It would be fair and just to correct the applicant's record based on the evidence that he met all requirements for promotion. The only hindering factor was not electing to be placed on the FY15 SGM promotion list. c. While coordinating this action with the MIARNG, the State G1 SGM confirmed by email on 2 February 2017 that the applicant had been on the SGM promotion list for both FY13 and FY14. The State G1 SGM stated the applicant "should have remained on the list and it's reasonable to say that had he received appropriate counseling he would have elected on his 2015 4100 to be considered for promotion." d. The NGB official recommended approval by administratively promoting the applicant to SGM/E-9 effective 18 May 2015, the date prior to his retirement date. The advisory opinion was coordinated with the NGB Enlisted Policy Branch and Retirement Services Branch. 13. The advisory opinion was forwarded the applicant for acknowledgment and/or rebuttal on 9 February 2017. He did not respond. REFERENCES: 1. AR 600-8-19 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. 2. Title 10, USC, 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 temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date he is retired. b. The highest temporary grade or rank in which served satisfactorily as determined by the Secretary of the armed force from which he is retired. c. 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. d. 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 MIARNG confirmed the applicant was on the FY13 and FY14 promotion lists to SGM/E-9. In preparation for the FY15 promotion board, the applicant was improperly counseled and effectively removed himself from promotion consideration because he was in the IDES. The NGB confirmed he received improper counseling when he elected not to be placed on the FY15 promotion list. The NGB opined the applicant met all requirements for promotion to SGM during the IDES process. 2. The applicant was placed on the PDRL on 19 May 2015. By law, he was entitled to promotion to the rank/grade of SGM/E-9 effective 18 May 2015, with any back retired pay due from that date. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001703 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001703 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2