BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20160009938 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: 6 September 2016 DOCKET NUMBER: AR20160009938 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: 6 September 2016 DOCKET NUMBER: AR20160009938 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 advancement on the retired list to the highest grade she would have held, sergeant (SGT)/E-5, under the provisions of Title 10, U.S. Code, section 1372 and Army Regulation 600-8-19 (Enlisted Promotions and Reductions). 2. The applicant states: a. She became incapacitated when she aggravated an injury during the walk portion of her last Army Physical Fitness Test (APFT) and was unable to complete the testing in September 2010. She passed an APFT on 11 April 2010. She was in the first position in the state for the promotion to E-5 for her military occupational specialty (MOS) 88N (Transportation Management Coordinator) on the promotion list, but she was not promoted. b. She never received any disciplinary actions that resulted in loss of rank, pay, or extra duties. c. She received the Army Achievement Medal and the Army Commendation Medal for her performance. d. She received a response from the Army Grade Determination Review Board (AGDRB) on 8 July 2014 informing her that her disability case would progress through the physical disability evaluation system (DES) and the Physical Disability Agency (PDA) would automatically use E-5 to calculate her disability pay by law. An official informed her that if her disability was not based on the grade of E-5 and she felt there was an error or injustice, she could apply to the Army Board for Correction of Military Records (ABCMR). e. She was medically retired and placed on the retired list, effective 6 November 2014. Her retirement orders placed her on the retired list in pay grade E-4 and, she received pay accordingly. If she had been afforded the opportunity for review by the Army Grade Determination Review Board (AGDRB), she would have been advanced to E-5. 3. The applicant provides: * Spreadsheet with tables that include a handwritten header titled "FY10 E4 - E5 PEL [Promotion Eligibility List] * DA Form 705 (Army Physical Fitness Test Scorecard), dated 11 April 2010 * Military Personnel Message (MILPER) Number 13-106 issued on 18 April 2013 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings, dated 31 March 2014 * Letter addressed the AGDRB, dated 30 May 2014 * Letter from the Army Review Boards Agency, dated 8 July 2014 * Orders Number D274-09, dated 1 October 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. The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) on 26 July 2006. She completed initial active duty for training (IADT) on 16 December 2006 and was awarded MOS 42A (Human Resources Specialist). On the following day, she was transferred back to her ARNG unit. 3. Her service record contains a DA Form 4187 (Personnel Action), dated 17 August 2007, that shows her advancement to private first class/E-3 with an effective date and date of rank of 17 August 2007. 4. On 17 January 2008, the applicant's unit commander initiated a DA Form 2173 (Statement of Medical Examination and Duty Status). This form shows the applicant returned from basic training and complained of bilateral hip pain. The unit commander indicated a formal LOD investigation was not required and she incurred the injury in LOD. 5. Her service record also contains a DA Form 4187, dated 17 February 2008 that shows her promotion to specialist (SPC)/E-4 with an effective date and date of rank of 17 February 2008. 6. She was on active duty for special work from 2 July 2008 to 3 December 2008. The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued for this period shows her effective date of pay grade to (SPC)/E-4 as 17 February 2008. 7. She was ordered to active duty for training (ADT) on 22 January 2010. At the completion of ADT on 9 March 2010, she was awarded MOS 88N. The DD Form 214 issued for this period shows her rank/pay grade as SPC/E-4. 8. She provided a spreadsheet with tables that include a handwritten header titled "FY10 E4 - E5 PEL." Her name is listed under MOS 88N in position 1 with 473 total points. However, it is unclear whether this is an official document. 9. She provided a DA Form 705 that shows she passed the APFT on 11 April 2010. This form shows her pay grade as E-4. 10. Her record contains a DA Form 5501 (Body Fat Content Worksheet), dated 17 September 2010 showing she did not comply with the Army height/weight and body fat standards. This form shows she was 23 years of age, was 65 inches tall, and weighed 158 pounds and had a body fat percentage of 36 percent (%). Her maximum authorized weight was 152 pounds and her maximum authorized body fat content was 32%. She exceeded her maximum weight by 6 pounds and her maximum body fat percentage by 4%. 11. Her record contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 19 September 2010, which shows her commander initiated a flag for the weight control program, code "K" on 19 September 2010. 12. Her Enlisted Record Brief (ERB), dated 25 July 2013, shows her rank/grade as SPC/E-4 and contains the following entries: a. The "Promotion Points/[Year/Month]" entry is blank. b. Her physical profile rating (PULHES) is listed as "113113." c. There are entries showing a Flag Code of "A" (Adverse Action) and a Flag start date of "19 September 2010." d. Her height/weight is listed as "65/163." e. She failed the APFT on 9 October 2010 with a score of "138." 13. On 31 March 2014, an informal PEB found the applicant unfit for duty and recommended a rating of 30 percent (%) with a permanent disability retirement. a. Her DA Form 199 shows the following unfitting medical conditions: * depressive disorder, not otherwise specified - 30% * femoral neuropathy, right and right leg condition (c/w [consistent with] meralgia paresthetica) - 0% * right leg condition (c/w meralgia paresthetica) - no rating listed b. Her PEB findings show her rank as SPC. 14. She provided a letter addressed to the AGDRB, dated 30 May 2014, in which she reiterated the reasons for her request as indicated on her application. 15. She provided a response letter from the Board Recorder, AGDRB, dated 8 July 2014. The Board Recorder states, "I have received your letter... in which you asked the [AGDRB] to advance you on the Retired List to the grade of E-5, a grade you claim you would have held." The Board Recorder explained that her application was not required. As her disability case progresses through that system, the Physical Disability Agency would automatically use E-5 to calculate her disability pay. The Board Record informed the applicant that he notified the PDA of her application and the provisions of Title 10, U.S. Code, section 1372. She was advised to apply to the ABCMR if she felt an error or injustice existed in her case. 16. Orders Number D274-09 published by the U.S. Army Physical Disability Agency on 1 October 2014 released the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and placed her on the retired list, effective 6 November 2014. These orders show her retired pay grade as E-4. 17. Her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the PAARNG retired her on 5 November 2014 and placed her on the permanent disability retired list. This form shows her rank and pay grade as SPC/E-4. 18. Her ERB, dated 6 November 2014, shows her rank/grade as SPC/E-4 and contains the following entries: a. The "Promotion Points/[Year/Month]" entry is blank. b. Her physical profile rating (PULHES) is listed as "113113." c. There are entries showing a Flag Code of "J" (APFT failure) and a Flag start date of "17 September 2010." d. Her height/weight is listed as "65/163." e. She failed the APFT on 9 October 2010 with a score of "138." 19. Her service record is void of evidence, which shows she was promoted to the rank of SGT/E-5 prior to her medical retirement. REFERENCES: 1. National Guard Supplement 1 to Army Regulation 600-8-2 (Flag), Table 4-2 (Flag Reason Codes and Report Type Codes for SIDPERS-ARNG) shows: a. Flag reason code "A" is the code used for Adverse Action, and b. Flag reason code "J" is the code used for APFT failure. 2. National Guard Supplement 1 to Army Regulation 600-8-2, paragraph 4-6 (Actions prohibited while favorable personnel actions are suspended) states, once initiated, the Flag precludes the following personnel actions: Enlisted Soldiers with an active Flag will not be promoted, advanced, laterally appointed to corporal, first sergeant, or command sergeant major, or frocked. However, Soldiers will be considered by promotion boards and after their Flags are removed may be integrated into promotion lists as prescribed in AR 600-8-19 (Enlisted Promotions and Reductions), chapter 7, section IX. 3. Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system. a. Chapter 3 (Semicentralized Promotions (SGT and SSG)) governs the promotion system for Regular Army and Reserve Soldiers. b. Table 3-3, in effect at the time, provided the eligibility criteria for recommendation for promotion. It stated for promotion to SGT, a Soldier: * must be recommended in the career progression MOS and must be fully qualified in the recommended MOS * must have high school diploma, general education development, or an associates or higher degree * must have 34 months of time in service (TIS) and 6 months of time in grade (TIMIG), waivable to 16 months of TIS and 4 months of TIMIG in the secondary zone * must not be flagged * must be considered physically qualified * must possess a current passing APFT score in accordance with applicable regulations and field manuals * cannot be enrolled in the Weight Control Program * cannot be enrolled in the Army Substance Abuse Program, unless self-referred 4. Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated to make grade determinations on behalf of the Secretary of the Army. The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. The regulation states that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, 10 USC 1212 and 1372). 5. Title 10, U.S. Code, section 1372 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/she 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/she is retired and which was found to exist as a result of a physical examination. d. The temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she 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. 6. MILPER Message Number 13-106 (Enlisted Promotion Clarification for Soldiers in the DES) issued on 18 April 2013, applies to Army Regulation 600-8-19, chapter 1, paragraph 1-20 that states, in part, Soldiers in the DES who are pending a medical fitness determination referral to a medical evaluation board (MEB) under Army Regulation 40-400 (Patient Administration) or PEB under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) remain otherwise eligible for promotion consideration, selection, and pin-on. The issuance of a permanent profile of "3" or "4" alone will not be used as the sole basis for determining primary MOS (PMOS) disqualification. Reserve Component Soldiers in the DES will not lose promotable status solely because a promotion list expires prior to a vacancy to promotion becoming available. DISCUSSION: 1. The evidence of record shows the applicant was promoted to SPC/E-4 on 17 February 2008. 2. The applicant was medically retired on 5 November 2014 and placed on the retired list in the rank of SPC/E-4 on the following day. 3. The applicant contends that she was in the first position for promotion to E-5 for MOS 88N on the promotion list. 4. The applicant provided a spreadsheet with tables that lists her name under MOS 88N in position 1 with 473 total points. However, this document alone is insufficient evidence to confirm her eligibility for promotion to SGT/E-5. 5. The applicant's DA Form 5501, dated 17 September 2010, shows she exceeded her maximum weight by 6 pounds and maximum body fat content by 4%. As a result, her commander initiated a flag for the weight control program on 19 September 2010. Her service record does not indicate this flag was removed prior to her medical retirement. 6. The applicant's ERB (25 July 2013) shows she failed the APFT on 9 October 2010 and her ERB (6 November 2014) reflects a Flag Code of "J" indicating an APFT failure. 7. Since the applicant was flagged for being overweight and APFT failure, she was not in a promotable status. Furthermore, the regulation does not permit the promotion of flagged Soldiers. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009938 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009938 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2