IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20140009784 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, that National Guard Bureau (NGB) Special Orders Number 234 AR, dated 21 October 2010, be corrected to show that she was retired in the rank/pay grade of Captain (CPT)/O3E. 2. The applicant states she did not know all of her records did not show the correct rank until she requested a copy of her promotion order from the medical board and found that they did not have an order with her current rank. 3. The applicant provides copies of her retirement orders, DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 September 1010, discharge orders, and Special Orders Number 234 AR. 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 this case 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 insufficient bases to waive the statute of limitations for timely filing. 2. With prior enlisted service in the Regular Army and the Arkansas Army National Guard (ARARNG), on 10 January 2004, the applicant was commissioned as a second lieutenant in the ARARNG. She was promoted to first lieutenant on 10 January 2006. 3. On 2 January 2008, she was ordered to active duty in support of Operation Iraqi Freedom and deployed to Iraq during the period 20 March 2008 to 25 October 2008. She returned to Fort Sam Houston, Texas, and was retained in service at the Warrior Transition Company for medical evaluation. 4. The applicant was selected for promotion to the rank of CPT by the Fiscal Year (FY) 2010 Army Promotion Selection Board (PSB) and her name was placed on the resulting promotion list. 5. On 27 September 2010, the applicant was retired in the rank of CPT by reason of temporary disability and placed on the Temporary Disability Retired List effective the following day. 6. On 28 September 2010, the applicant was honorably discharged from the ARARNG. 7. On 21 October 2010, Special Orders Number 234 AR published by NGB withdrew the applicant’s Federal recognition as a 1LT. 8. In the processing of this case a staff advisory opinion was obtained from the NGB which recommends disapproval because the applicant was not promoted to the rank of CPT while in service but was promoted upon retirement. Accordingly, her Federal recognition was withdrawn upon separation in accordance with National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition). The advisory opinion was provided to the applicant for comment and to date no response has been received. 9. Title 10, U.S. Code, section 1372 (10 USC 1372) provides the legal authority for the grade to be awarded to members retiring for physical disability. It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: a. the grade in which he or she is serving on the date when his or her name is placed on the Retired List; b. the highest grade in which he or she served satisfactorily; or c. the grade to which he or she would have been promoted had it not been for the physical disability that resulted in retirement. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that Special Orders Number 234 AR should be corrected to show Federal recognition in the rank of CPT has been noted and appears to lack merit. 2. While the applicant was selected for promotion to the rank of CPT, she was not promoted to the rank of CPT while serving in the ARARNG but was promoted at the time of her retirement based on her standing on the promotion list. 3. There was no basis for the ARARNG to submit a request for Federal recognition for the applicant in the rank/grade of CPT/O-3E as she was not promoted by the State, but under the provisions of 10 USC 1372. The ARARNG properly submitted a request for withdrawal of her Federal recognition as a 1LT as a result of her retirement, which was executed by Special Orders Number 234 AR. No further action was required by the ARARNG or NGB. 4. Inasmuch as there appears to be no error or injustice in this case, there appears to be no basis for granting the applicant’s request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of her service in arms. _______ _ 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) AR20140009784 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140009784 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1