ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2020 DOCKET NUMBER: AR20170007975 APPLICANT REQUESTS: Correction of his record to show he was medically retired in the rank/grade of staff sergeant (SSG)/E-6, in lieu of, sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Request for Grade Determination, dated 4 January 2016 * Memorandum, Subject: Permanent Physical Disability Retirement, dated 4 February 2016 * Orders Number D 035-26, dated 4 February 2016 * Orders Number 092-042, dated 1 April 2016 * Orders number 092-043, dated 1 April 2016 * Email correspondence 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 when he began his retirement process he was told he would retire at his highest paygrade held for a two year period. He was instructed to complete the proper request process and submit his paperwork to his retirement case worker. He did as he was ordered, but his case worker dropped the ball. His unit did indeed retire him at the rank of SSG, but because his of his case worker’s mistake, he was wrongfully retired in the rank of SGT. 3. A review of the applicant’s official records show the following: a. On 1 November 2000, the applicant enlisted in the Maryland Army National Guard (MDARNG) and served in various positions. b. On 4 February 2003, Orders Number 016-306, issued by Headquarters, MDARNG, promoted the applicant to the rank of SGT, effective on 31 January 2003. c. The applicant’s records are void of orders promoting him to the rank of SSG in 2009; however, his record contains a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) showing his date of rank for promotion to SSG was 15 October 2009. d. On 16 October 2011, Orders Number 289-001, issued by Headquarters, 1st Battalion, 175th Infantry, Multinational Force and Observers, Sinai, reduced the applicant from the rank of SSG to SGT, effective on 16 October 2011, by reason of misconduct. The authority was Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-3. e. On 4 January 2016, a Physical Evaluation Board (PEB) convened, and the PEB found the applicant physically unfit and recommended a combined rating of 30 percent and his disposition be permanent disability retirement. f. On 4 February 2016, Orders Number D 035-26, issued by the U.S. Army Physical Disability Agency retired the applicant for permanent physical disability, and retired him in the rank of SGT. g. On 1 April 2016, Orders Number 092-042, issued by the MDARNG, promoted the applicant to the rank of SSG, effective on 9 March 2016. These orders indicate the promotion was for placement on the permanent disability retired list. The authority was AR 600-8-19, paragraph 1-20(e). 4. The applicant provides: a. Memorandum, Subject: Request for Grade Determination that states in pertinent part, he requested to be retired in the rank of SSG. He was reduced to SGT after fighting back after breaking up a fight and excessively striking a junior NCO. b. Memorandum, Subject: Permanent Physical Disability Retirement wherein the applicant was informed he was found to have a disability and would be permanently retired at 30 percent. c. Orders Number 092-043, issued by the MDARNG, discharged the applicant from the ARNG and reassigned him to the Retired Reserve in the rank of SSG, by reason on permanent disability retirement. d. Email correspondence between the applicant and his case worker wherein he requested to be retired in the rank of SSG and provided requested paperwork to the case worker. 5. On 30 September 2019, the National Guard Bureau (NGB) reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Special Actions Branch opined that: a. The applicant believes the PEB Liaison Officer (PEBLO) made a mistake in the process of retiring him. However the Army Grade Determination Review Board (AGDRB) states that his case did not meet the criteria for a grade determination when submitted. Due to this, his PEBLO was not able to adjust his rank which ultimately lead to his ABCMR request. b. The Soldier was reduced to the rank of SGT in October 2011 due to his involvement in an altercation with other Soldiers; the official reason for reduction was misconduct. Prior to this altercation, the applicant had a date of rank (DOR) of 15 October 2009. At the time of his retirement, the applicant was not eligible to be promoted to the rank of SSG due to being reduced due to misconduct. AR 600-8-19, 7-14e states, “Soldiers will be promoted to the highest enlisted rank satisfactorily held, provided they were not reduced for misconduct or inefficiency.” The only exception to this would have been a determination by the AGDRB. c. Prior to his discharge, the MDARNG decided to promote him to SSG. Sergeant Major (SGM) F- M-, MDARNG G1 SGM, provided documents showing the Soldier was promotable at the time of his retirement. Per the guidance in AR 600-8-19, 1-21, 5e, the applicant should have been promoted effective the day prior to his retirement effective date. However, this promotion would only be for the purposes of establishing rank at the time of retirement and would not establish a difference in his pay calculations for medical disabilities and retirement. d. Based on the available evidence and documentation, their office recommends the applicant receive partial relief. Per AR 600-8-19, 1-21, 5e the applicant does meet the criteria to be retired at the rank of SSG. However, based on the guidance in AR 600-8-19, 7-14e, he is not entitled to payment of entitlements and benefits at that grade. Therefore his records should reflect the rank of SSG and pay grade of E-5 (SSG/E-5). The NGB enlisted personnel section concurs with this recommendation. The MDARNG was consulted on this recommendation. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 7. Title 10, USC, section 1372 (effective 4 January 1995), 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, is entitled to the grade or rank in which he or she is serving on the date when his or her name is placed on the temporary disability retirement list or, if his or her name was not carried on that list, on the date when he or she is retired. 8. AR 600-8-19: a. Paragraph 1-21(5)(e) states The Soldier will be promoted effective the day before placement on the retired list. b. Paragraph 7-14(e) states concurrent with separation from the ARNG and transfer to the Retired Reserve or placement on the Retired List, Soldiers will be promoted to the highest enlisted grade satisfactorily held, provided they were not reduced for misconduct or inefficiency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service and reduction in grade due to misconduct, the determination to retire him due to physical disability, his subsequent promotion to SSG prior to his discharge and the rank reflected on his discharge orders. The Board considered the policy applicable to the applicant’s circumstances and the review and recommendation of the NGB advising official. The Board found that the applicant, while previously reduced for misconduct, was again properly identified for promotion to SSG prior to his separation and would have been promoted had it not been for his medical separation. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s record was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders Number D 035-26, issued by the U.S. Army Physical Disability Agency to reflect the applicant was retired for permanent physical disability in the rank/grade of SSG/E6. . 10/7/2020 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. REFERENCES: 1. Title 10, USC, 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 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. 2. Title 10, USC, section 1372 (effective 4 January 1995), 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, is entitled to the grade or rank in which he or she is serving on the date when his or her name is placed on the temporary disability retirement list or, if his or her name was not carried on that list, on the date when he or she is retired. 8. AR 600-8-19 (Enlisted Promotions and Reductions): a. Paragraph 1-21(5)(e) states The Soldier will be promoted effective the day before placement on the retired list. b. Paragraph 7-14(e) states concurrent with separation from the ARNG and transfer to the Retired Reserve or placement on the Retired List, Soldiers will be promoted to the highest enlisted grade satisfactorily held, provided they were not reduced for misconduct or inefficiency. //NOTHING FOLLOWS//