BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160002678 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: 12 December 2017 DOCKET NUMBER: AR20160002678 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: 12 December 2017 DOCKET NUMBER: AR20160002678 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 record to show his retired rank/pay grade as sergeant first class (SFC)/E-7, effective 26 June 2013. 2. The applicant states that Soldiers in the U.S. Army Warrior Care and Transition Program (WCTP) and U.S. Army Wounded Warrior Program (AW2) who are promotable and pending referral to a Military Occupational Specialty Administrative Retention Review (MAR2), medical evaluation board (MEB) or physical evaluation board (PEB) will not be denied promotion on the basis of medical disqualification if they are otherwise qualified for promotion. Prior to his medical evacuation from Iraq, he was in an SFC/E-7 slot and position in both his home unit and his deployed unit. He met the promotion standards for both time in grade and time in service. He was only waiting for his return from his deployment to finish his noncommissioned officer (NCO) schools and education. 3. The applicant provides no additional documents. 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. After completing prior service in the Regular Army, the applicant enlisted in the Army National Guard on 7 April 1994. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served on active duty from 20 January to 29 March 2004. Item 18 (Remarks) shows he served in Iraq from 6 April 2004 to 11 March 2005. 4. A DD Form 214 shows he served on active duty from 14 May 2005 to 30 September 2005. 5. His DA Form 2166-8 (NCO Evaluation Report) for the rated period 1 November 2009 through 30 September 2010 shows his date of rank to staff sergeant (SSG)/E-6 as 17 August 2009. This report shows he served as acting first sergeant during a humanitarian mission to El Salvador. He also completed Phase 1 of an Advanced Leadership Course in July 2010. 6. He was ordered to active duty on 22 November 2010 and he served in Iraq from 24 November 2010 to 2 June 2011. 7. On 13 March 2013, an informal PEB found him unfit for military service for right upper extremity radiculopathy status post C4-C5 anterior fusion surgery and for his condition of cervical degenerative disc disease status post fusion with residual paresthesia with a combined disability rating of 30 percent. His DA Form 199 (Informal Physical Evaluation Board Proceedings) shows his rank as "SSG." 6. Orders Number 112-0117, issued by Headquarters, III Corps and Fort Hood, TX, dated 22 April 2013 released him from his assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability effective 27 June 2013. He was subsequently retired and placed on the retired list in the grade of SSG on 28 June 2013. 7. His DD Form 214 shows he was honorably retired due to permanent disability on 27 June 2013. This form contains the following information: * Item 4a/4b (Grade, Rate or Rank)/(Pay Grade) – SSG/E6 * Item 12i (Effective Date of Pay Grade) – 17 August 2009 8. The applicant's official military personnel file is void of orders promoting him to SFC. 9. An email from the TXARNG, G-1, dated 18 October 2017 states the applicant's name was not on the State SFC promotion list for 2012. REFERENCES: 1. Title 10, U.S. Code, section 1372 (Grade on retirement for physical disability) states 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. 2. Army Regulation 635-8 (Separation Processing and Documents) states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Paragraph 5-6 provides detailed instructions for data required in each block. It states for block 4, verify that active duty grade or rank and pay grade are accurate at time of separation. DISCUSSION: 1. The applicant's service record is void of orders promoting him to SFC, and an email from the TXARNG G-1 indicates that his name was not on a State SFC Promotion list. 2. His retirement DD Form 214 shows his retired grade of rank as SSG with a date of rank of 17 August 2009. His retired grade of SSG is also shown on his retirement orders. 3. 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. There is no evidence showing the applicant was on the promotion list for SFC at the time of his medical retirement and placement on the Retired List. 4. His discharge document was properly prepared to reflect his rank/pay as SSG/E-6 in items 4a and 4b of his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002678 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002678 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2