BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150014635 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150014635 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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: 9 February 2017 DOCKET NUMBER: AR20150014635 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as sergeant (SGT) instead of specialist (SPC). 2. The applicant states: a.  His command informed him he would automatically be promoted and he is emotionally and psychologically hurting because it did not happen. Every time he has to go to a job interview, he is asked why he was not promoted to a higher rank throughout his almost 6 years of service. b.  He joined the Army as an SPC and he left the service with the same rank after 5 years and 11 months because of erroneous codes other noncommissioned officers (NCOs) placed or failed to place in his records. c.  His bad luck started early in his career with an injury during his first deployment. He underwent two shoulder surgeries when he returned from deployment, one in April 2010 and the other in November 2010. He was assigned a physical profile rating for recovery until March 2011. d.  His retention NCO asked him if he wanted to reenlist in July 2010 when his window for reenlistment and permanent change of station opened. He advised his retention NCO that he could not make a decision at that time because he still had over 2 years left on his current enlistment and he was about to get married and wanted to wait to get his wife's opinion. His commander and retention NCO made him sign something that 1 year later he discovered was a DA Form 4991-R (Declination of Continued Service Statement (DCSS)) and the retention NCO entered a "Q9" code in his Enlisted Record Brief. When he submitted his application package for Warrior Leader Course attendance so he could be promoted, he was informed that the code had basically frozen his Army career. e.  Despite being an initial term Soldier with the right to refuse reenlistment without any negative action taken against him, the retention NCO refused to remove the code and blackmailed him to reenlist for another 4 years in order to have the code removed. He gave up and volunteered for deployment. f.  In August 2011, his deploying unit retention NCO explained the regulation to him and submitted a package to his brigade commander and had the code removed. g.  His old injuries and surgeries were exacerbated and he was medically evacuated from theater and placed in a warrior transition unit (WTU). He was assigned a physical profile rating preventing him from taking his Army Physical Fitness Test (APFT). The unit was conducting promotion boards every month and his first sergeant (1SG) asked him to submit his promotion package. Around August 2012, the unit human resources personnel assisted in putting his package together and needed his last APFT score. His last record APFT score was from October 2009 because of his surgeries. He had other APFTs while he was deployed, but no one updated his records. He was ignorant as to the importance of something such as this and never asked for a copy for his records. h.  The WTU 1SG became upset and accused him of forgery when he saw his old APFT scorecard. The 1SG reported it to the inspector general who investigated the incident and concluded that it was not his fault and he was not guilty. The 1SG tried his best to push him to separate upon his expiration of term of service (ETS), but he refused and wanted to reenlist. i.  In January 2013, he went before a medical evaluation board (MEB) and he was sent back to his parent unit a week later to finish the MEB. He had a new chain of command who did not know about him. He discussed his promotion issue with the new chain of command and he was informed he was ineligible for promotion because he was going through an MEB. They convinced him that he would receive an automatic promotion due to his time in service that would be reflected on his DD Form 214. His DD Form 214 still showed his rank as SPC. He went directly to his command sergeant major and 1SG on his last day on the installation. Both made telephone inquiries and finally discovered his records had never been updated to show his injury or physical profile status. They promised to take care of the issue and have his DD Form 214 fixed while he was on transition leave. His DD Form 214 was never fixed because he was "out of sight" and "out of mind." j.  He has tried to forget about the promotion issue, but he has been unable to obtain employment for over 18 months since his discharge. He has very good skills and credentials and employers are very impressed until his DD Form 214 is viewed. Prospective employers always question why he was never promoted during all the time he was in service. He tries to explain but it is very complicated and they don't understand. k. He understands he must take some of the responsibility for being ignorant and not fighting for his promotion and for waiting until the last day. The sergeant major told him the issue could have been fixed if he had come in 2 weeks before his ETS. l. He was a very good Soldier. He never failed an APFT or weapons qualification. He never received negative counseling except from his WTU 1SG. m.  His family is growing and his bills are growing because he just purchased a home. He has many commitments and he needs to support his family. He believes the rank shown on his DD Form 214 is a major stumbling block in his career path. n. He called the Human Resources Office at Fort Irwin, CA, for assistance and nobody is willing to help. The U.S. Army Human Resources Command referred him to this agency. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army for a period of 4 years and 31 weeks on 19 March 2008. He completed training and he was assigned to Fort Irwin, CA, on or about 23 August 2008. 2. Headquarters, National Training Center and Fort Irwin, Orders 111-89, dated 21 April 2009, assigned him to the 75th Ranger Regiment and deployed him in a temporary change of station status in support of Operation Iraqi Freedom for a period of 137 days effective 27 April 2009. 3. Records show he served in Iraq from 29 April 2009 through 29 August 2009. 4. On 20 September 2010, he married. 5. Headquarters, National Training Center and Fort Irwin, Orders 307-04, dated 4 November 2010, ordered him on a permanent change of station to Fort Polk, LA, with a reporting date no later than 10 January 2011. 6. Headquarters, National Training Center and Fort Irwin, Orders 363-11, dated 30 December 2010, amended Headquarters, National Training Center and Fort Irwin, Orders 307-04 to show his reporting date as no later than 10 March 2010 (should read 2011). 7. Headquarters, National Training Center and Fort Irwin, Orders 146-94, dated 26 May 2011, attached him to 4th Brigade, 1st Cavalry Division, and deployed him in a temporary change of station status in support of Operation New Dawn for a period of 270 days effective 28 May 2011. 8. Landstuhl Regional Medical Center Orders A-10-122733, dated 8 October 2011, reassigned him in a temporary change of station status and attached him to Headquarters, Warrior Transition Battalion, Fort Irwin, CA, effective 8 October 2011 for a period of 21 days for further medical treatment. 9. Headquarters, National Training Center and Fort Irwin, Orders 061-92, dated 1 March 2012, amended Headquarters, National Training Center and Fort Irwin, Orders 146-94, dated 1 March 2012, pertaining to his reassignment to 51st Translator Interpreter Company, added authorized travel in Cantania, Italy, and in Bahrain. 10. Headquarters, National Training Center and Fort Irwin, Orders 008-0026, dated 8 January 2013, released him from active duty not by reason of physical disability and assigned him to the U.S. Army Reserve Control Group (Reinforcement) effective 21 February 2013. 11. His DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 21 November 2013, shows: a.  His case was adjudicated as part of the Integrated Disability Evaluation System. The informal PEB found he was physically unfit and recommended a combined disability rating of 80 percent and placement on the Temporary Disability Retired List (TDRL) with reexamination during July 2014 for the following conditions: * obstructive sleep apnea * post-traumatic stress disorder * right shoulder strain/instability status post-three surgeries with scars * intervertebral disc syndrome of the cervical spine with degenerative arthritis changes b.  He waived a formal hearing of his case and concurred with the findings and recommendations. c.  On 9 December 2013, the findings and recommendations were approved. 12. Headquarters, National Training Center and Fort Irwin, Orders 345-0030, dated 11 December 2013, directed his placement on the TDRL in the rank of SPC effective 5 March 2014. 13. His DD Form 214 shows he retired by reason of temporary disability (enhanced) on 21 February 2014 in the rank of SPC. He completed 5 years, 11 months, and 3 days of creditable active military service. 14. On 16 May 2014, he was approved for Combat-Related Special Compensation. 15. His DA Form 199, dated 31 August 2015, shows the informal PEB found he was physically unfit and recommended a combined disability rating of 80 percent and permanent disability retirement. He concurred with the PEB findings and recommendation. On 28 September 2015, the findings and recommendations were approved. 16. U.S. Army Physical Disability Agency Orders D265-29, dated 22 September 2015, removed him from the TDRL on 22 September 2015 and permanently retired him in the rank of SPC on the same date due to permanent physical disability. 17. His records are void of any evidence of a promotion recommendation, APFT scores, or DCSS. REFERENCES: 1. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. a.  Paragraph 1-10 (Nonpromotable Status), in effect at the time, stated Soldiers are nonpromotable to a higher grade when ineligible to reenlist based on suspension of favorable actions (flag); pending separation; field or Headquarters, Department of the Army (HQDA), bar to reenlistment; approved DCSS; approved retirement; or a failing weapons qualification score. b.  Paragraph 1-20 (Promotion of Soldiers Pending Referral to a Military Occupational Specialty Medical Retention Board, MEB, or PEB), in effect at the time, stated Soldiers in this category will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. Soldiers who have been conditionally promoted but are unable to meet the condition of their promotion solely because of a medical condition that results in a finding of unfitness by the Physical Disability Evaluation System will not be subject to administrative reduction if otherwise qualified to retain promotable status. c.  Paragraph 1-32 (Physical Profiles Resulting from Combat-Related Operations), in effect at the time, stated Soldiers who are unable to take an aerobic or alternate APFT event due to a permanent physical profile will use their last APFT score until the Soldier is medically cleared to take the APFT. If the Soldier’s last score was a failing score, that Soldier will be granted a minimum qualifying score of 60 points for each APFT event. Active Army, Active Guard Reserve, and troop program unit Soldiers with a temporary physical profile that prohibits taking one or more events of the APFT will use their current APFT score provided it is not more than 2 years old at the time of the promotion point computation. d.  Paragraph 3-7 (Soldiers Hospitalized Because of Service-Incurred Disease, Wound, or Injury and Soldiers Assigned to Warrior Transition Battalion), in effect at the time, provided that otherwise eligible, Soldiers on a recommended list for promotion prior to hospitalization or assignment to a warrior transition battalion may be promoted if their point scores are the same or higher than those announced by HQDA or Headquarters, U.S. Army Resources Command. Soldiers who are not on a recommended list at the time of hospitalization or assignment to a warrior transition battalion may be recommended for and considered for promotion by the local medical holding facility selection board. e.  Table 3-3 (Eligibility Criteria for Recommendation), in effect at the time, showed "none" for waiver of the APFT. f.  Table 3-10 (Promotion Standing List Removal Reason Codes), in effect at the time, showed code Q as failure of record APFT. g.  Paragraph 3-11, in effect at the time, stated that for Soldiers fully qualified but not recommended for promotion, the battalion human resources specialist will prepare a DA Form 3355 (Promotion Point Worksheet) and forward it to the first-line leader for appropriate counseling. Once counseling is completed, the commander will forward the DA Form 3355 and counseling documents to the promotion authority for final decision. Once a Soldier has been counseled for not being recommended for promotion, the battalion human resource specialist will not continue to provide a new DA Form 3355 to the commander. Copies of the Soldier's periodic counseling (at least quarterly) will be provided to the promotion authority until the Soldier is recommended for promotion or is no longer eligible. h.  Paragraph 3-17, in effect at the time, stated promotion to SGT, provided the Soldier is otherwise eligible for promotion consideration despite lacking the actual promotion board appearance, requires: * 46 months time in service (to become eligible for promotion at 48 months) * 10 months time in grade (to become eligible for promotion at 12 months) * otherwise not ineligible in accordance with this regulation * not otherwise denied by the commander * Soldier must have a minimum of 90 days of remaining service as of the month of integration into the recommended list 2. Immediate reenlistment prohibition code 9Q represents DCSS (refusal to take action to meet length of service requirements). 3. Army Regulation 601-280 (Army Retention Program) outlines procedures for immediate reenlistment or extension of enlistment for Soldiers serving on active duty and prescribes criteria options for enlistment or transfer into the Reserve Component for Soldiers separating from Active Army. Paragraph 4-11, in effect at the time, stated Soldiers, other than those in their initial terms, having 4 or more years of service for pay purposes at ETS, must take action to meet their service remaining requirement (SRR). This action is required regardless of the SRR starting or reporting date, to include those after the Soldiers' current ETS. Soldiers eligible, but refusing to take action to satisfy military SRRs, will be denied further service through the DA Form 4991-R . However, there are exceptions. The DCSS will not be used for: a.  Soldiers ineligible to obtain sufficient time through reenlistment or extension of enlistment as verified by the servicing career counselor; b.  Soldiers with insufficient time and ineligible to take action to obtain sufficient time to complete an unaccompanied tour; c.  Soldiers within 90 days of ETS date on date of notification of assignment instructions; d.  continental United States-based Soldiers alerted for movement outside the continental United States with insufficient time to complete an accompanied tour but who have sufficient time or are eligible to take action to obtain sufficient time to complete an unaccompanied tour (i.e., the Soldier having enough time to complete an unaccompanied tour, but not the longer accompanied tour, will not have a DCSS); and e.  Soldiers serving on an indefinite reenlistment do not have the option of submitting a DCSS. Indefinite Soldiers who are retirement eligible may submit retirement applications in lieu of assignment; however, approval is not automatic. 4.  Title 10, U.S. Code, section 1372, states Soldiers on a recommended 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. 5. Title 10, U.S. Code, section 1212, states Soldiers who are on a recommended promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the Soldier's separation date. DISCUSSION: 1. The applicant contends he should have been promoted to SGT, but his records were improperly coded, which made him ineligible for promotion, and the code was later removed. He also stated he was told by his chain of command that his DD Form 214 would show his rank as SGT. 2. He enlisted in the rank of SPC and promotion to SGT required 46 months of time in service. At the time he became eligible for promotion consideration to SGT, he was being processed through an MEB. Although this did not make him ineligible for promotion consideration, he acknowledged he lacked an APFT that was 2 years old or less. His lack of the required APFT made him ineligible for promotion. 3. Although he stated he signed a DCSS, his records are void of any evidence he signed such a document. 4. The evidence of record shows he did not meet the requirements for promotion to SGT. His DD Form 214 and disability retirement orders show his proper rank as SPC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014635 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014635 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2