ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20160019121 APPLICANT REQUESTS: The applicant requests restoration of his sergeant (SGT)/E-5 rank/grade in the Florida Army National Guard (FLARNG) to the date of original promotion (9 January 2013). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records). * Orders 009-054, dated 9 January 2013 promoting him to SGT * Orders 009-055, dated 9 January 2013 transferring him to another unit * Orders 101-63, dated 11 April 2013, revoking his promotion * NGB Form 22 (Report of Separation and Record of Service) FACTS: 1. The applicant states back in 2012, he was put on the E-5/SGT promotions list, having completed Warrior Leader Course in June 2009, and never being in trouble or any disciplinary actions. Due to medical issues, he obtained a permanent medical profile, and started the medical evaluation board/physical evaluation board (MEB/PEB) process. In Jan 2013, he was promoted to E-5 and assigned to another unit. The new command saw that he failed weigh and tape, and put in to reverse the promotion. They ignored the fact that he had had medical issues that contributed to the weigh and tap failure. They also ignored the fact that he had a medical profile, and was going through a MEB/PEB for that issue. They would not acknowledge that Army Regulations allow for promotion while on a permanent profile, and going through an MEB/PEB. He believes this action was unjust. He has always done everything the Army asked him to do to the very best of his abilities. He served two tours in Iraq and a humanitarian mission in Haiti. I He has kept the Army values with 15 years of service and he was medically retired. 2. With respect to his retroactive promotion in the FLARNG to the original date of 9 January 2013, his request is premature. Promotion of enlisted personnel in the ARNG is a function of the State Adjutant General. Furthermore, Army Regulation (AR) 15-185 (ABCMR), the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her. There is no evidence that the applicant has requested retroactive promotion through the State or the National Guard Bureau (NGB), and were denied relief. The issue of retroactive promotion to 9 January 2013 will not be considered by the Board. However, the issue of being placed on the retired list in the rank/grade of SGT/E-5 due to permanent disability effective 28 June 2016 will be considered by the Board. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 30 August 2001 and reenlisted on 5 May 2005. He served in Iraq from December 2004 to December 2005 and from 2006 to December 2007. He completed the Warrior Leader Course in 2009. b. He was honorably discharged in the rank/grade of specialist (SPC)/E-4 on 4 May 2001 due to completion of his required service. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) documenting his active service. c. He enlisted in the FLARNG in the rank/grade of SPC/E-4 on 7 January 2011. d. On 9 January 2013, FLARNG published Orders 09-054 promoting him to SGT in the ARNG effective 9 January 2013. The orders stated promotion is not valid and will not be effective if the Soldier is not in a promotable status on the effective date of promotion. e. Also on 9 January 2013, FLARNG published Orders 009-055 transferring him from 3116th Forward Support Battalion, Lake Wales, FL, to the 1st Battalion, 111th Aviation in Jacksonville, FL, effective 15 February 2013, per his request. The orders stated "Soldier does not meet minimum profile standards for deployment." f. On 11 April 2013, FLARNG published Orders 101-063 revoking the applicant's promotion to SGT/E-5. The orders stated he was promoted due to an administrative error. He should have been flagged for weight control at the time of his enlisted promotion selection. g. The applicant extended his enlistment in the ARNG for 12 months on 7 December 2013 and for 6 months on 3 February 20176 on h. He entered the Disability Evaluation System. A PEB considered his disabling condition(s), and determined those conditions prevented satisfactory performance of duty in his primary MOS and grade. The PEB rated his conditions at 40 percent and recommended his permanent retirement. i. On 24 May 2016, the U.S. Army Physical Disability Agency (USAPDA) published Orders 145-58 releasing him from assignment on 27 June 2016 by reason of disability and placing him on the permanent retirement list, by authority of Title 10, U.S. Code, section 1204, in his retired grade of SPC/E-4 effective 28 June 2016. j. He retired on 28 June 2016 due to permanent disability. His NGB Form 22 shows his rank as SPC, his grade as E-4, and his effective date of rank as 1 April 2003. 4. An advisory opinion was received from the National Guard Bureau on 14 May 2019 in the processing of this case. An NGB official recommended approval of the applicant's request. He stated: a. Applicant states that in 2012 he was put on the SGT/E-5 promotion list having completed the Warrior Leader Course (WLC) in 2009. Due to medical issues, he states that he received a permanent medical profile and started the MEB/PEB process. On 9 January 2013, he was promoted to SGT and he was assigned to another unit. He further states that the new command saw that he failed tape and weight, and revoked his promotion, ignoring the fact that he had medical issues, had a medical profile and was going through the MEB/PRB process. b. According to the FLARNG, the applicant was fully qualified and selected from that year's enlisted promotion system list for promotion. FLARNG order number 009-054, dated 9 January 2013, shows him being promoted to SGT effective 9 January 2013. On 11 April 2013, FLARNG order number 101-063 was erroneously produced which revoked his promotion to SGT/E-5. Additionally, there is no evidence to indicate the applicant was flagged for not meeting the height/weight standards in accordance with Army Regulation (AR) 600-9 (Army Weight Control Standards). c. AR 600-8-19 (Enlisted Promotions and Reductions), chapter 7-20 states in part that "To be eligible for consideration, selection, and promotion to SGT through SGM, Soldiers must- (a) Be considered and placed in the selection objective of the current promotion list. All Soldiers must go through the board process before they may be selected and promoted; (b) Be in promotable status in accordance with paragraph 1-10 (Title 10 AGR Soldiers) and paragraph 7-4 (Title 10 AGR and Title 32 Soldiers); (c) Be participating satisfactorily in the active ARNGUS in the next lower grade. d. The applicant met all the requirements to be promoted to the rank of SGT as indicated by his promotion order. Additionally, the FLARNG concedes that the revocation to his promotion order was erroneous. It is therefore recommended that his rank be restored to SGT to include all back pay and allowances. e. This opinion was coordinated with the Army National Guard enlisted policy branch. The FLARNG concurs with this recommendation. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments and/or a rebuttal. He did not respond. 6. By law, any member of an armed force who is retired for physical disability is entitled to the grade equivalent to the permanent regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which retired. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. The applicant received promotion orders to SGT. The orders for the stated promotion was not valid and would not be effective if he was not in a promotable status on the effective date of promotion. The promotion orders were subsequently rescinded as he was not in a promotable status at the time the order was published due to failing a weigh-in. The applicant had a permanent profile at the time of the weigh-in. There is no provision under the Army height and weight program excepting personnel from height and weight standards when given a profile for physical limitations. There are very rear occurrences when a profiling official will request commanders exempt members from Army height and weight standards; there is no evidence that happened within this case. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, U.S. Code, section 1372, states 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: * 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 * 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 * 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 * 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proof. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019121 6 1