ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20170000532 APPLICANT REQUESTS: * placement on the Retired List in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5 * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 November 2007 * Memorandum, Subject: Placement on the Temporary Disability Retired List (TDRL), dated 6 January 2010 * Orders Number D006-45, dated 6 January 2010 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 9 February 2010 * Orders Number 287-17, dated 14 October 2011 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was supposed to be medically boarded out of the Army as a SSG. 3. A review of the applicant’s service records show the following on: * 1 October 1985 – the applicant enlisted in the New York Army National Guard (NYARNG) * 31 May 1990 – the applicant was honorably released from the NYARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) in the rank/grade of specialist (SPC)/E-4 * 20 July 1994 – the applicant enlisted in the NYARNG and served in various assignments * 3 December 2009 – an informal Physical Evaluation Board (PEB) convened and found the applicant physically unfit and recommended a combined rating of 70% and his disposition be placement on the TDRL with reevaluation in September 2010 * 21 January 2010 – Orders Number 021-011, issued by the Office of the Adjutant General, discharged the applicant from the ARNG and reassigned him to the USAR Control Group (Retired) in the rank of SGT * 3 October 2011 – an informal PEB convened and reconsidered his case and determined his conditions remained unfitting and recommended a combined rating of 80% and his disposition be permanent disability retirement * 14 October 2011 – Orders Number 287-17, issued by the U.S. Army Physical Disability Agency removed the applicant from the TDRL and permanently retired him in the rank of SGT under the provisions of Title 10 USC, section 1201 * the applicant’s records are void of orders promoting the applicant to the rank of SSG, or showing the applicant was on a promotion list for promotion to SSG 4. The applicant provides: * DD Form 214 showing his rank as SGT at the time of release from active duty * Memorandum, Subject: Placement on the TDRL wherein the applicant was informed he was being placed on the TDRL with a disability rating of 70% * Orders Number D006-45 showing the applicant was placed on the TDRL in the rank of SGT * NGB Form 22 showing the applicant was transferred to the Retired Reserve in the rank of SGT and his date of rank was 4 July 1993 5. Title 10 USC, 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 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 or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. b. The highest temporary grade or rank in which he or she served satisfactorily, as determined by the Secretary of the Armed Force from which he or she is retired. c. 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 he or she is retired and which was found to exist as a result of a physical examination. 6. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) paragraph 1-20 in effect at the time states per the provisions of Title 10 USC, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. 7. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and the evidence in the records. The Board considered the applicant’s statement, his service record, his medical disability retirement, his record of promotions and a lack of evidence in the records showing he was recommended for and/or promoted to SSG during his period of service. Additionally, the Board found the applicant provided no evidence of his promotion to SSG. Based on a preponderance of the evidence, the Board determined that the rank (SGT) appearing on his separation documents was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10 USC, 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 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 or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. b. The highest temporary grade or rank in which he or she served satisfactorily, as determined by the Secretary of the Armed Force from which he or she is retired. c. 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 he or she is retired and which was found to exist as a result of a physical examination. 3. AR 600-8-19 (Enlisted Promotions and Reductions) paragraph 1-20 in effect at the time states per the provisions of Title 10 USC, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20170000532 0 4 1