BOARD DATE: 24 January 2017 DOCKET NUMBER: AR20150013631 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: 24 January 2017 DOCKET NUMBER: AR20150013631 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: * promoting him to sergeant first class/E-7 effective the day prior to his placement on the Permanent Disability Retired List * amending his DD Form 214 and retirement orders to reflect this promotion * paying him any monies he is due 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. BOARD DATE: 24 January 2017 DOCKET NUMBER: AR20150013631 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 correction of his records to show he was retired in the rank/grade of sergeant first class (SFC)/E-7 versus staff sergeant (SSG)/E-6. 2. The applicant states: a. At the time of his retirement for physical disability, he understood his sequence number for promotion to SFC had come up but he was ineligible to be promoted since he was being retired. He was told he needed to fulfill the two-year service requirement to be retired as an SFC; therefore, he did not pursue the promotion and he retired a few days after his sequence number came up. b. He was recently told by another medical retiree that the two-year rule only applies those retiring for sufficient service and is not applicable to medical retirements. If he was eligible to be promoted to SFC prior to his retirement, he should have been promoted and retired as an SFC, not as an SSG. 3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 April 1989 and a letter from the Department of Veterans Affairs (VA), Evidence Intake Center, Janesville, Wisconsin, dated 31 July 2014. 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. Following prior active service in the Regular Army and inactive service in the Army National Guard, the applicant reenlisted in the Regular Army on 19 February 1980. 3. The applicant was promoted to the rank/grade of SSG/E-6, effective 1 February 1984. 4. The applicant's record contains an automated DA Form 2A (Personnel Qualification Record – Part I), prepared on 21 December 1988, which shows he was promotable to SFC (on the SFC promotion list) as of the date the document was printed. 5. Orders D50-4, issued by the U.S. Total Army Personnel Agency (Provisional), Alexandria, Virginia on 15 March 1989, ordered the applicant's retirement by reason of physical disability in the rank/grade of SSG/E-6, effective 5 April 1989, with placement on the Retired List the following day. 6. The applicant was retired on 5 April 1989 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of permanent physical disability in the rank/grade of SSG/E-6. 7. An advisory opinion was provided on 9 June 2016 by the Chief, Promotions Branch, U.S. Army Human Resources Command, Fort Knox, Kentucky. The advisory official did not recommend approval of the applicant's request for relief; he states the following: a. A review of the applicant's application for promotion to SFC based on medical retirement has been determined by the U.S. Army Human Resources Command, Promotions Branch to be unwarranted. b. The applicant was medically retired and placed on the Permanent Disability Retired List (PDRL) on 6 April 1989. Chapter 7 (Promotions) of Army Regulation 600-200 (Enlisted Personnel Management System), dated 5 July 1984, does not authorize promotion upon placement on the PDRL of any DA selected promotable Soldier. It does however, validate that a 2-year service remaining requirement is a condition for promotion to SFC. c. It was not until 21 July 2006, with the updated release of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), that the regulation established the promotion of a recommended Soldier in the Disability Evaluation System, whereby a Soldier will be promoted one day prior to placement on the PDRL. 8. The applicant was provided a copy of this advisory opinion on 13 June 2016, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 1-20c provides that, per the provisions of Title 10, U.S. Code (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, U.S. Code, section 1372 (Grade on retirement for physical disability), signed into law on or about 10 August 1956, 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 when he is retired. b. 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. 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 is retired and which was found to exist as a result of a 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 applicant requests correction of his records to show he was retired in the rank/grade of SFC/E-7, versus SSG/E-6. 2. The evidence of record confirms the applicant was retired on 5 April 1989, under the provisions of Army Regulation 635-40, by reason of permanent physical disability and in the rank/grade of SSG/E-6. 3. The applicant's record contains an automated DA Form 2A, prepared on 21 December 1988, which shows he was on the SFC promotion list as of the date the document was printed. 4. The advisory official is correct in that the regulatory authority in effect at the time, Army Regulation 600-200, did not provide a means for promoting promotable Soldiers prior to their separation for disability. Nevertheless, the legal provisions found in Title 10, U.S. Code, section 1372 still existed at the time and applied in the applicant's case. 5. Title 10, U.S. Code, section 1372, signed into law on or about 10 August 1956, provides that a Soldier on a promotion list at the time of retirement for disability must be promoted to the promotion list grade effective the day before placement on the Retired List. 6. The applicant was on the SFC promotion list on the day he was retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013631 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2