IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004303 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: 7 November 2017 DOCKET NUMBER: AR20160004303 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. Based on the evidence presented in this case, the Board recommends that the U.S. Army Physical Disability Agency, Arlington, VA, void the "Corrected Copy" of U.S. Army Physical Disability Agency, Arlington, VA, Order D281-39, dated 13 October 2015, that was digitally signed on 11 November 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: 7 November 2017 DOCKET NUMBER: AR20160004303 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, correction of her military service records to show she was promoted to the rank of major (MAJ)/pay grade O-4 and payment of all retired back pay that she may be due. 2. The applicant states that she provided a copy of both her retirement and promotion orders to the Defense Finance and Accounting Service (DFAS) and the orders show her rank as MAJ (O-4). However, DFAS will not recognize her promotion for retired pay purposes unless the Army Board for Correction of Military Records (ABCMR) provides notification of an approved correction to her military service records. 3. The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), promotion order, and permanent retirement order. CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted and cadet service in the U.S. Army Reserve from 27 November 1991 through 14 May 1998. 2. She was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (Transportation Corps), on 15 May 1998. a. She entered active duty on 1 June 1998. She was promoted to the rank of captain (CPT)/pay grade O-3 on 1 December 2001. b. She resigned as a Reserve commissioned officer and was honorably discharged on 15 November 2004. 3. Based on the applicant's request, she was ordered to active duty on 4 August 2011 in the rank of CPT (O-3). 4. An informal Physical Evaluation Board (PEB) convened on 20 December 2013 at Joint Base Lewis-McChord, WA. The PEB found the applicant physically unfit and recommended a disability rating of 70 percent with transfer of the applicant to the Temporary Disability Retired List (TDRL). The PEB proceedings were approved on 8 January 2014. 5. A DD Form 214 shows the applicant entered active duty this period on 4 August 2011 and she was honorably retired from active duty on 26 April 2014 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, based on disability, temporary (enhanced). It also shows in – * item 4a (Grade, Rate or Rank): CPT * item 4b (Pay Grade): O03 6. Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, Orders 014-0026 (paragraph 2), dated 14 January 2014, as amended by Orders 087-0004, dated 28 March 2014, released the applicant from assignment and duty on 26 April 2014 because of physical disability and placed her on the TDRL effective 27 April 2014 in the grade of rank of CPT (O-3). The Standard Name Line (SNL) of both the basic order and amendment show her rank as "CPT." She was credited with 9 years, 7 months, and 11 days of service for disability retirement and 16 years, 0 months, and 29 days for basic pay. 7. U.S. Army Human Resources Command (HRC), AHRC-PRO, Fort Knox, KY, Orders B-03-500760, dated 16 March 2015, promoted the applicant to MAJ (O-4) effective and with a date of rank of 16 March 2015. 8. An informal PEB convened on 5 October 2015 at Joint Base Lewis-McChord, WA. The PEB found the applicant physically unfit and recommended a disability rating of 70 percent with permanent disability retirement. The PEB proceedings were approved on 13 October 2015. 9. U.S. Army Physical Disability Agency (USAPDA), Arlington, VA, Order D281-39, dated 13 October 2015, removed the applicant from the TDRL on 13 October 2015 and permanently retired her in her current rank effective 14 October 2015. The SNL of the order shows her rank as "CPT." The order was digitally signed on 13 October 2015. 10. In support of her application the applicant also provides, in pertinent part, a copy of a "Corrected Copy" of USAPDA, Arlington, VA, Order D281-39, dated 13 October 2015, that removed the applicant from the TDRL on 13 October 2015 and permanently retired her in her current rank effective 14 October 2015. The SNL of the order shows her rank as "MAJ." The order was digitally signed on 25 November 2015. 11. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, U.S. Army HRC, dated 30 May 2017. The HRC official provided the following information. a. The Fiscal Year 2014 (FY14) Reserve Component (RC) MAJ Promotion Selection Board (PSB) convened on 10 March 2014. The applicant was selected for promotion by the board. b. The applicant was placed on the retired list effective 27 April 2014. As a result, she was removed from the Reserve Active Status List (RASL). c. The FY14 RC MAJ PSB was approved on 6 June 2014 and released on 14 June 2014. d. The advisory official stated that her removal from the RASL occurred prior to approval of the PSB, therefore, she was not eligible for promotion to MAJ. e. He noted that promotion orders issued by HRC are electronically transmitted to DFAS to update the individual's pay record. 12. U.S. Army HRC (AHRC-PRO), Fort Knox, KY, Orders B-03-500760R, dated 30 May 2017, revoked U.S. Army HRC (AHRC-PRO), Orders B-03-500760, dated 16 March 2015, pertaining to the promotion of the applicant to MAJ. The order cited Title 10, U.S. Code (USC), section 14308, as the authority. 13. On 30 May 2017, the applicant was provided a copy of the U.S. Army HRC advisory opinion to allow her the opportunity to submit comments or a rebuttal. 14. On 5 June 2017, the applicant provided her response. She noted that the information pertaining to the FY14 RC MAJ PSB and also the date that she was placed on the TDRL (27 April 2014) are correct. She also noted that the promotion order was issued on 16 March 2015, while she was still on the TDRL. a. She stated that Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 4 (Processing Selection Board Recommendations), paragraph 4-11 (General), requires an officer to be in an active status to be promoted, which would make her ineligible for promotion. b. Conversely, Title 10, USC, section 1372(3), entitles the officer to the grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of a physical examination. c. She stated that the two references are in direct conflict. d. She referred to ABCMR Docket Number AR20150004308, dated 20 October 2015. She stated paragraph 2 of the Discussion and Conclusions, "…implied that if the [officer] was retired and not just discharged his motion for promotion correction would have been granted." e. She stated that due to extenuating circumstances, she was unable to continue to serve on active status. She concludes that she was eligible for promotion to MAJ. REFERENCES: 1. Army Regulation 133-155, chapter 4, paragraph 4-11, shows that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed before being promoted in the Reserve components. It shows, in pertinent part, the officer must be on the RASL or serving in an active status. 2. Title 10, USC, section 14308 (Promotions: how made), Promotion List, shows that when the report of a selection board convened under section 14101(a) or 14502 of this title is approved by the President, the Secretary of the military department concerned shall place the names of all officers selected for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of seniority of those officers on the RASL. A promotion list is considered to be established under this section as of the date of the approval of the report of the selection board under the preceding sentence. 3. Title 10, USC, section 1372 (Commissioned officers: general rule; exceptions), Grade on Retirement for Physical Disability: members of armed forces, 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 TDRL 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 TDRL 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. 10 USC (1212 and 1372) prescribes Army grade-determination policy for officers who are retired because of physical disability. It provides for the promotion of officers recommended by a Title 10 PSB or Title 32 Federal Recognition Board, on an approved promotion list and confirmed by the Senate prior to the effective date of retirement because of physical disability. The policy also implements the grade-determination authority, but it does not authorize the actual promotion of officers covered by the policy who are retired because of physical disability prior to being promoted. 2. The evidence of record shows: a. on 8 January 2014, the applicant was found physically unfit and approved for transfer to the TDRL; b. the applicant was selected for promotion by the FY14 RC MAJ PSB that convened on 10 March 2014; c. she was released from the RASL on 26 April 2014 and transferred to the TDRL in the grade of rank of CPT (O-3) effective 27 April 2014; d. the results of the FY14 RC MAJ PSB were approved on 6 June 2014; e. orders were issued that promoted her to MAJ on 16 March 2015; f. on 5 October 2015, she was found physically unfit based on permanent disability and approved for permanent retirement; and g. USAPDA Order D281-39, dated 13 October 2015, removed her from the TDRL and permanently retired her, as follows – * in the rank of CPT (O-3) effective 14 October 2015 – the order was digitally signed on13 October 2015 * in the rank of MAJ (O-4) effective 14 October 2015 – the "corrected copy" of the order was digitally signed on 25 November 2015 h. On 30 May 2017, HRC revoked the erroneous promotion order. i. It appears the "corrected copy" of USAPDA Order D281-39 was issued based on the erroneously issued promotion order. 3. A promotion list is considered to be established under 10 USC 14308 as of the date of the approval of the report of the selection board. 4. The evidence of record clearly shows the applicant was not on the RASL when the FY14 RC MAJ PSB was approved. 5. The statute (10 USC 1372) does not allow for the applicant to be placed on the retired list in grade O-4 (MAJ). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004303 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004303 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2