IN THE CASE OF: BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150015290 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 IN THE CASE OF: BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150015290 BOARD DETERMINATION/RECOMMENDATION: 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Numbers AR20140018474, dated 18 August 2015. _____________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. IN THE CASE OF: BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150015290 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 reconsideration of his previous request for promotion to pay grade E-5. 2. The applicant states: a. He enlisted on 1 November 1966. He arrived in Vietnam and he was promoted to pay grade E-3 on 8 April 1967. On 6 June 1967, he was wounded in combat precipitating a 1 1/2 year plus transient hospital patient status in four different U.S. Army/Air Force medical facilities in four countries. He was promoted to pay grade E-4 on 3 October 1967. He was arbitrarily and capriciously medically retired on 25 October 1967, 6 days prior to having achieved the necessary time in service (TIS) to be eligible for promotion to E-5, despite sufficient time in grade (TIG). b. The decision to medically retire him was both hasty and premature in that surgical procedures performed on him by the Army physicians in fact resulted in additional damage to the ulnar nerve in his left arm. This is clear in the medical record. Further medical examination by the Department of Veterans Affairs physicians evaluated his permanent injuries at 100 percent compensable. c. He asserts that his pending eligibility for promotion to E-5 was a guiding factor in their abrupt decision to medically retire him just 6 days short of the necessary TIS point. He was never informed by Army medical personnel why they suddenly and precipitously decided to retire him. Also, he was not made aware of his pending promotion eligibility status. He realizes promotion is not supposed to be a factor determined by the Army medical personnel; however, it is highly relevant to note that the date this issue was decided resulted in the deprivation of substantial benefits. d. He feels there are also non-qualification issues to consider as well. He volunteered to enter the Army. He did not wait for draft status. He volunteered for service in Vietnam. His possible career in the military was taken away from him. This is all more questionable in light of his "excellent" conduct while in the service. He requests the Board revisit the previous decision and take into consideration the causatal factors of his medical discharge and the ultimate date, less than 1 week prior to his eligibility for promotion. In his initial application to the Board, perhaps he misworded the reasons for review of his case and he apologizes. 3. The applicant provides his previous DD Form 149 (Application for Correction of Military Record and attached correspondence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records in Docket Numbers AR20140018474, dated 18 August 2015. 2. The applicant enlisted in the Regular Army on 1 November 1966 and he held military occupational specialty 11E (Armor Crewman). He arrived in Vietnam on 4 April 1967. He was promoted to pay grade E-3 on 8 April 1967. 3. On 7 June 1967, he sustained multiple fragment wounds to the left lower extremity when the vehicle he was riding in struck a land mine in Vietnam. He was subsequently medically evacuated to Fort Ord, CA. 4. Unit Orders Number 23, issued by the Medical Holding Company, Fort Ord on 3 October 1967, promoted him to pay grade E-4 (temporary (T)). 5. On 6 August 1968, a Physical Evaluation Board (PEB) convened and found him unfit for military service and recommended his placement on the Temporary Disability Retired List (TDRL), with a combined rating of 60 percent. He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. The DA Form 1361 (Recommended Findings of the PEB) lists his rank as specialist four (SP4). 6. He was honorably retired on 25 October 1968, by reason of temporary disability. His DD Form 214 show he was credited with completing 1 year, 11 months, and 25 days of active service. This form lists in: * Item 5a (Grade, Rate, or Rank) – SP4 (T) * Item 5b (Pay Grade) – E-4 * Item 6 (Date of Rank) – 3 October 1967 7. On 18 May 1970, a PEB convened and found him medically unfit due to an injury to the ulnar nerve; limitation of motion, elbow, left arm; arthritis, due to direct trauma, left elbow; hearing impairment; and paralysis of nerve in left forearm. The PEB recommended his permanent retirement. He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. The DA Form 1361 lists his rank as SP4. 8. On 9 November 1970, he was removed from the TDRL and permanently retired in the rank of SP4. REFERENCES: 1. Army Regulation (AR) 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers. a. Chapter 7 contained Army-wide promotion policy and procedures. It stated the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders. Control would be exercised to insure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas. b. Soldiers hospitalized as a result of hostile action would not be deprived of consideration for promotion. Time spent in a casualty status would be included in computing eligibility. Promotion quotas were not required nor were MOS restrictions in the monthly promotion quota directives. For Soldiers hospitalized, the losing promotion authority could include a recommendation for promotion in the wounded Soldier's record. Medical facility commanders with promotion authority could promote assigned patients, but not earlier than the date of eligibility under the normal time-in-grade and service requirements. c. In order to be eligible for temporary appointment to pay grade E-4, a Soldier must have completed 6 months in pay grade E-3, be in an appointable status, and hold and be serving in the MOS in which the appointments are authorized. A Soldier must be MOS qualified and occupy a position vacancy of a higher rank or grade and be physically qualified to perform the duties of the MOS and grade. The permanent appointment of Regular Army Soldiers in the grade in which serving would become automatic for pay grade E-4 at 12 months TIS in the temporary rank. For permanent appointment, no orders were required. d. For temporary appointment to pay grade E-5, the specified completion of 8 months' time in pay grade E-4 and 3 years TIS (normal promotion) or 2 years' TIS (accelerated promotion). Recommendations for promotion to pay grade E-5 would be prepared on a DA Form 2496 (Disposition Form), signed by the recommending official, and submitted through channels to the headquarters of the promotion authority. Waivers for one-half of the time in the lower pay grade were permissible. There were no provisions for automatic promotion to pay grade E-5. 2. AR 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. It stated that items 5a and 5b would show the active duty rank and pay grade at the time of the Soldier's separation, taken from the Soldier's promotion/reduction orders. Item 6 would show the associated date of rank. DISCUSSION: 1. The evidence shows the applicant was wounded on 7 June 1967 while serving in Vietnam. He was subsequent transferred to the Medical Holding Company, Fort Ord. He was promoted to the temporary pay grade of E-4 on 3 October 1967. 2. A PEB convened and found him medically unfit for further military service and recommended his placement on the TDRL. He concurred with the findings and recommendations of the PEB. He was honorably retired in the temporary pay grade of E-4 on 25 October 1968, by reason of temporary disability. He was permanently retired in pay grade E-4 on 9 November 1970. 3. At the time, he met the minimum TIG criteria for promotion to E-5; however, he was medically retired before completing and meeting the 2 years TIS requirement (November 1968). The normal time in service eligibility for promotion to pay grade E-5 was 3 years. As such, the normal service eligibility date for his promotion from E-4 to E-5 was October 1969, which was after his medical retirement. By regulation, hospital commanders could promote him, but not earlier that the normal TIG and TIS requirements. 4. There is no evidence showing he was considered and recommended for promotion, temporarily or permanently, to pay grade E-5 by a selection board prior to his retirement. A retired member of the Army retires in the grade he or she holds on the date of retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015290 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015290 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2