ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20170005204 APPLICANT REQUESTS: * a 15-year letter for his service in the United States Army Reserve (USAR) * reconsideration for his rank change on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from sergeant first class (SFC)/E-7 to master sergeant (MSG)/E-8 * retirement from the reserves APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214, period ending 20 January 2006 * Orders 06-054-00021, dated 23 February 2006 (promotion to MSG) * memorandum, dated 2 July 2009, issued by the U.S. Army Physical Disability Agency * Orders D183-22, dated 2 July 2009 (permanent retirement order) * ARPC Form 249-E (U.S. Army Human Resources Command Chronological Statement of Retirement Points), dated 5 April 2012 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 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, in effect, he did not receive his 15-year letter because he was out of the country, on active duty, during the last 5 years of his service in the USAR. He was assigned to a chaplain detachment and was attached to many units. He provided a copy of his retirement points statement in order to ask for his retirement stipend since he had reached age 60 at the time of his application. 3. The applicant provides: a. A copy of his DD Form 214, period ending 20 January 2006, that shows he was honorably retired in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24B(2) on 20 January 2006 and placed on the temporary disability retired list (TDRL). b. A copy of Orders 06-054-00021, dated 23 February 2006, issued by Headquarters, 90th Regional Readiness Command, North Little Rock, AR, promoting him to the rank of MSG, effective 1 March 2006. c. A copy of a memorandum from the U.S. Army Physical Disability Agency, dated 2 July 2009, notifying the applicant that he had been removed from the TDRL and being permanently retired. The applicant was informed he would be contacted by the Defense Finance and Accounting Service (DFAS)-Cleveland concerning retirement pay. The memorandum indicated "DA (Department of the Army) Orders" and DD Form 363A (Certificate of Retirement) were provided to him to obtain a new identification and privilege cards for himself and eligible family members. d. A copy of Orders D183-22, dated 2 July 2009, issued by the U.S. Army Physical Disability Agency, removed the applicant from the TDRL effective 2 July 2009. The order shows the applicant in the rank of MSG. e. A copy of ARPC Form 249-E, dated 5 April 2012, which chronologically summarized his retirement points earn over the course of his military service to determine the total points creditable to gain eligibility for a non-regular retirement. The statement shows the applicant had accrued 2,981 points, which qualified him for 19 years, 6 months and 23 days towards a non-regular retirement. The document also shows the applicant in the rank of MSG. 3. A review of the applicant's service record shows: a. He was born on XX X__ XXXX. He turned 60 years of age on XX X___ XXXX. b. Having had prior service, the applicant enlisted in the USAR on 27 October 1998. He completed the Chaplain Assistant Supervisor Course in 1999. c. He was promoted to sergeant first class (SFC) on 1 March 2001 in military occupational specialty 91B (Medical Specialist). He reenlisted in the USAR on 19 August 2001. d. He entered active duty on 16 March 2003 and subsequently served in Kuwait/Iraq from April to November 2003. e. On 9 June 2005, a physical evaluation board (PEB) convened and found him physically unfit. The PEB rated his conditions of chronic low back pain, cervical vertebral disc syndrome, and shoulder pain, at 60% and his disposition be placement on the temporary disability retired list (TDRL). f. On 18 January 2006, ordered were published releasing the applicant from his assignment and duty because of a physical disability and placement on the TDRL. The orders reflect his effective date of retirement as 22 February 2006. However, orders were published on 19 January 2006, amending the effective date of his retirement to read 20 January 2006. g. He retired on 20 January 2006 in accordance with AR 635-40, and he was placed on the TDRL on 21 January 2006. His DD Form 214 also shows he completed 2 years, 7 months and 19 days of active service during this period of active service. It also shows in: * Item 4a (Grade, Rate or Rank), SFC * Item 4b (Pay Grade), E-7. * Item 12c (Net Active Service This Period), 2 years, 10 months, 5 days * Item 12d (Total Prior Active Service), 3 years, 1 month, and 25 days * Item 12e (Total Prior Inactive Service), 13 years, 6 months and 22 days * Item 28 (Narrative Reason for Separation) "Disability, Temporary." h. On 23 February 2006, Headquarters, 90th Regional Readiness Command, North Little Rock, AR, published Orders 06-054-00021, promoting the applicant from SFC/E-7 to MSG/E-8 effective 1 March 2006. The orders indicate that the promotion would not be valid and the orders would be revoked if he was not in a promotable status on the effective date of the promotion. i. In ABCMR Docket Number AR20060003665, dated 19 October 2006, he requested to be promoted to MSG/E-8. The Board determined relief should be granted. (1) The reason the applicant was not initially placed on the TDRL in the pay grade of E-8 was because his promotion orders were not published until 23 February 2006, after he was retired. However, in accordance with applicable law, he should have been placed on the TDRL in the pay grade of E-8 as it was clear that his name was on the Department of the Army Promotion Selection List for promotion to the pay grade of E-8 prior to his name being placed on the TDRL. (2) The Board recommended that all of the applicant's records corrected to show he was placed on the TDRL on 21 January 2006 (the day after the ending date of the DD Form 214), in the pay grade of E-8, and paying him any back pay to which he may be entitled. j. Following a TDRL PEB that found he remained physically unfit, Orders D183-22, dated 2 July 2009, issued by the U.S. Army Physical Disability Agency, removed the applicant from the TDRL and permanently retiring him due to physical disability effective 2 July 2009, in the rank of MSG. k. According to the applicant's DA Form 5016 (Chronological Statement of Retirement Points), he completed 19 years, 6 months, and 23 days of qualifying service for non-regular retirement. 4 . With respect to the 15-Year Letter and Reserve retirement: a. By law and regulation, Reserve Component members normally are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. Because he did not complete 20 qualifying years of service, he does not qualify for a 20-year letter. b. The law further states that a member of the Selected Reserve who was medically disqualified for continued service in an Reserve Component could be considered as having met the service requirement and could be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. c. Also by law (Title 10, U.S. Code, section 12731) a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. [A Soldier may not receive two retirements for the same period of service]. 5. With respect to the grade, by law (Title 10, USC, section 1372) and regulation (AR 600-8-19 - Enlisted Promotions and Reductions) Soldiers on a promotion list who are retired for physical disability (Title 10, USC, section 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (Title 10, USC, section 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be fully eligible for promotion (in accordance with paragraph 1-10 of AR 600-8-19). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. Based upon the applicant already being medical retired and the Board members agreeing that by law a Soldier may not receive two retirements for the same period of service, the Board concluded that issuing a 15 year retirement letter would not be appropriate in this case. However, the Board agreed that sufficient evidence shows that the applicant was selected for promotion to MSG before being placed on the TDRL. Because he was promotable, by law, the Board concluded that the applicant is authorized to be placed on retired list in the higher grade and his DD Form 214 corrected to show the higher grade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show his rank/grade as MSG/E-8, effective 20 January 2006. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: * a 15-year letter for his service in the United States Army Reserve (USAR) * retirement from the reserves 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. While 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. Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers. Paragraph 1-20(c) states per the provisions of Title 10, U.S. Code, 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. 3. Title 10, USC, section 1372 (Grade on retirement physical disability, members of the Armed Forces), 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: 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 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. 4. Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 5. Title 10, U.S. Code, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty. It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. ABCMR Record of Proceedings (cont) AR20170005204 6 1