ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 November 2019 DOCKET NUMBER: AR20170009544 APPLICANT REQUESTS: promotion to the next higher rank. He also request a personal appearance 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) * Privacy Act Form * Email to Constituent Services Specialist * US Code 1372 document * Fax to Congressman’s Office * Letter from congressman to Army Review Board Agency (ARBA) * Memorandum from ARBA Case Management Division (CMD) * Advisory Opinion * Applicant Letter to CMD, ARBA 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 in effect, in September 2011 he was retired medically due to injury sustained in the line of duty. He had been promoted to captain in May of 2008. He had time in grade to be considered for promotion to major. He completed the educational requirements, and other than the physical limitations that prevented him from doing physical training was qualified for promotion and would likely have been promoted on the next board except that his career was cut short due to injury. 3. The applicant provides: a. His DD Form 214 dated 17 September 2011 which shows his rank as Captain/O-3 with an effective date of pay grade 6 May 2008. He was honorably retired due to disability, permanent (enhanced). b. A privacy authorization form to his US Congressman stated he was retired due to injuries while in the window for promotion from captain to major and this should have been done while he was on station prior to discharge but was not and now requires corrections. It does not affect his pay benefits at all only his stated retirement rank. He filed paperwork for corrections but have not been successful in getting the board to adhere to the regulation and to help him with his appeal. c. An email from constituent services specialist M__ S__ dated 15 June 2017 stated the applicant would need to fill out a DD Form 149 and send it with supporting documents and that a DD Form 149 was attached. d. A copy of US Code 1372 shows grade on retirement for physical disability: members of armed forces reads: 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: (1) 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. (2) 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. e. A fax from his congressman to the director of ARBA dated 19 June 2017 with comment please review and assist with inquiry for the applicant if possible and thank you for the assistance. f. Letter from the congressman to the director of ARBA dated 19 June 2017, who wrote on behalf of his constituent, the applicant stating he appreciated a careful review of the enclosed privacy authorization form and any accompanying documents and could direct the response to the congressman as well as the applicant. g. Memorandum from ARBA CMD to Army Human Resources Command (HRC) dated 26 August 2019 requested an advisory opinion no later than 26 September 2019 for the applicant’s application for correction of military records regarding promotion eligibility during Medical Board. h. The advisory opinion from HRC dated 25 September 2019 for AR20170009544 stated: * Based on a review of the information provided, our records and the systems available to HRC Officer Promotions, we find the applicant's request to be promoted without consideration or selection does not have merit * There are no records which reflect that the applicant has ever been recommended for promotion to Major, on any promotion selection board while on the Reserve Active Status List. Current documents within his Army Military Human Resource Records show that CPT Kahn was retired (permanent disability enhanced) on 17 September 2011, well before ever meeting any criteria for promotion consideration * Policy authorizes an officer separated for physical disability pursuant to 10 USC 1203 or1206 to have his or her disability severance pay calculated in the next higher grade provided the respective officer was on either an approved promotion list or promotion nomination scroll. At the time the applicant retired, he was not in a promotable status i. Applicant letter to the director of CMD ARBA states: * he was medically retired due to service connected injuries on September 17th, 2011. This retirement was after 15 months of temporary assignment to the Warrior Transition Brigade (WTB) in Joint Base Lewis McChord * he was promoted to Captain in the spring of 2008. Given this fact, he had accrued 3 years, time in grade (TIG) as of the spring of 2011 * he completed a Bachelor of Science in Nursing as of May 2011 * he completed a Master of Science in Theology, and a Doctorate in Ministry and Trauma Counseling * he maintained credentials as a Registered Nurse, Trauma Nurse Core Course, Advanced Cardiac Life Support, Pediatric Advanced Cardiac Life Support, Basic Healthcare Worker Cardiopulmonary Resuscitation, A+ Certification as a Computer Hardware Technician and Lean Six Sigma Joint Chiefs of Staff Certification * he was active in the community, he taught healthcare premises to various school aged children, coached as an assistant with multiple athletic teams, and volunteered with service organizations * he completed the online portion of the Captain Career Course but was instructed that the onsite portion of the course would not be authorized due to his being processed for medical retirement * his assignment to the WTB was in question between the command at the WTB, and the home unit as to who was responsible for keeping up with personnel administration where he was concerned * he would have been eligible for the promotion to Major board had it not been for his being medically separated due to service connected injuries. Given the community service, the civilian and military education/training accomplishments, and qualifying time in grade it is likely that he would have been selected for promotion to major had it not been for the service connected injuries, validated by physical examination, for which he was being processed for medical retirement. * in accordance with, 10 USC 1372, which 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 4. A review of the applicant’s service records shows: a. His letter of appointment as a Reserve commissioned officer of the Army date 7 December 1999. b. His DA From 71 (Oath of Office) dated 11 January 2000 shows reserve commissioned officer, his grade 2LT, second lieutenant/O-1. c. His DD Form 214 dated 10 June 2003 reflects his grade as 2LT and pay grade was O-1. He was honorably released from active duty. d. His DD Form 214 dated 10 December 2007 his grade was 1LT, pay grade O-2. He was honorably released from active duty. e. His DD Form 214 dated 24 December 2007his grade was 1LT and pay grade was O1. He was honorably released from Active Duty. f. On the memorandum for promotion as a Reserve commission officer of the Army dated 13 April 2005 he was promoted to 1LT in the USAR. g. Orders 341-0005 dated 7 December 2007 amended orders pertaining to his REFRAD (Release from Active Duty). The amendment read, effective date 24 December 2007 he was eligible for transitional health care under 10 USC, section 1145 until 21 June 2008 and he was REFRAD for contingency operation enduring freedom and the REFRAD was for demobilization of forces from a contingency operation. h. Orders B-05-803251 dated 9 May 2008 promoted him to CPT/O3 effective date and date of rank was 6 May 2008. i. Orders A-09-025103 dated 13 September 2010 he was ordered to active duty under the provision of section 12301 (H), title 10 USC (When authorized by the Secretary of Defense, the Secretary of a military department may, with the consent of the member, order a member of a reserve component to active duty: * to receive authorized medical care; * to be medically evaluated for disability or other purposes; or * to complete a required Department of Defense health care study, which may include an associated medical evaluation of the member * he was assigned to the WTB for a period of 358 days for the purpose of an active duty medical extension (ADME), end date was 16 August 2011 i. His DD Form 214 dated 17 September 2011 reflected the grade CPT and pay grade O-3 effective 6 May 2008. He was honorable retired with disability, permanent (enhanced). He served 1 year and 24 days this period. Item 18 reflects that he was ordered to active duty in support of active duty medical extension. j. The physical evaluation board (PEB) proceedings convened on 8 November 2011 and found the applicant was physically unfit and recommended a combined taring of 30% and that his disposition be permanent disability retirement. The board further stated if retired because of disability, the board made the recommendation finding that: * the Soldier’s retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by and instrumentality of was an incurring in line of duty during a period of was as defined by law * evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or reserve thereof, or the MOAA (Military Officers Association of America) for USPHS (United States Public Health Service) on 24 September 1975 * disability did not result from a combat related injury as defined in 26 USC 104 and for purposes of 10 USAC 10216 (G) k. In the ABCMR denial letter to the applicant dated 13 June 2007, in reference to case number AR20060017018, he was informed that the board considered his application (that referred to his date of rank be corrected because he was unfairly delayed for promotion from 2LT to 1LT, he was ineligible for the captain’s promotion board in January 2007) under procedures established by the Secretary of the Army. A copy of the board’s proceedings was enclosed that explained the board’s reasons for denying his application. l. 5. Army Regulation 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 will decide cases on the evidence of record. It is not an investigative body. 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. Additionally, applicants may be represented by counsel at their own expense. 6. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNGUS and the USAR, and warrant officers of the USAR. a. To be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the RASL (reserve active status list) or the ADL (active duty list) (or a combination of both lists) during the 1 year period ending on the convening date of the promotion board, and must meet the TIG (time in grade) requirements, as appropriate. ARNGUS and USAR officers will be considered for promotion in their competitive category only: Army Promotion List (APL, to include JA); Chaplains (CH); Army Nurse Corps (AN); Dental Corps (DC); Medical Corps, Medical Service Corps (MS); Army Medical Specialist Corps (SP); and Veterinary Corps (VC). 7. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that will be furnished each individual who is separated from the Army. Item 5a; enter the grade in which serving at the time of separation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, based upon the findings by the HRC advisory stating that there is no evidence in the applicant’s record to show that he was ever selected for promotion to Major, the Board concluded there was insufficient evidence of an error or injustice which would warrant a correction to the record. The Board wished to inform the applicant that his submissions did demonstrate he was fully qualified for promotion; however, being qualified does not ensure the applicant would be selected for future promotions. Therefore, the Board found no relief 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. 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. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNGUS and the USAR, and warrant officers of the USAR. a. To be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the RASL (reserve active status list) or the ADL (active duty list) (or a combination of both lists) during the 1 year period ending on the convening date of the promotion board, and must meet the TIG (time in grade) requirements, as appropriate. ARNGUS and USAR officers will be considered for promotion in their competitive category only: Army Promotion List (APL, to include JA); Chaplains (CH); Army Nurse Corps (AN); Dental Corps (DC); Medical Corps; Medical Service Corps (MS); Army Medical Specialist Corps (SP); and Veterinary Corps (VC). b. Paragraph 3-19 states officers and warrant officers who have either failed of selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered from promotion by either a promotion advisory board or an SSB (special selection board). Records of officers or former officers will be referred for SSB action when the Office of Promotions (Reserve Components) determines the ABCMR requests such a referral. c. Paragraph 3-20 (Information Provided to SSBs) states a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board. The records of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board. 3. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that will be furnished each individual who is separated from the Army. Item 5a; enter the grade in which serving at the time of separation. 4. Executive Order 13358 (Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces) provides that the Secretary of Defense shall perform, except with respect to the Coast Guard during any period in which it is not operating as a service in the Navy, the functions of the President under the provisions of Title 10, U.S. Code, 12203(a), which states appointments of Reserve officers in commissioned grades of LTC or below shall be made by the President alone. Appointments of Reserve officers in commissioned grades above LTC shall be made by the President, by and with the advice and consent of the Senate. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170009544 8 1