ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170010079 APPLICANT REQUESTS: * through counsel that he be promoted to O-4 and that this change be reflected on his DD 214 (Certificate of Release or Discharge from Active Duty) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Biographical Sketch * Officer Retention Memorandum * Selection Board Memorandum * Request for Reevaluation * Officer Record Brief * DD 214 (Certificate of Release or Discharge from Active Duty) 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, through counsel, states that: a. On 21 July 2011, he was medically evacuated from Basra, Iraq to the San Antonio Military Medical Center for continued medical care. On 25 April 2013, he was ordered to show cause for retention in the United States Army under the provisions of Army Regulation (AR) 600-8-24, chapter 4, paragraphs 4-2b(5), 4-2b(8), 4-2b (11), and 4· 2c (5), due to misconduct, moral or professional dereliction, and adverse information. On 21 November 2013, a Board of Inquiry (BOI) found that he did commit misconduct, moral or professional dereliction. However, the board recommended by a unanimous vote that he be retained in the service. On 17 June 2014, applicant was twice nonselected for promotion by a mandatory Reserve of the Army selection board and was advised that his board file will appear in front of future Reserve Component Boards until such time as he is selected for promotion eligibility he will remain at his current rank until his separation date 31 August 2022. b. The applicant was retired on 20 June 2014 and placed on the Physical Disability Retirement List on 21 June 2014. His DD Form 214 shows his rank as captain (CPT) and his pay grade as 0-3. His interpretation is that AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20, stated Soldiers who were pending referral to a medical retention board under AR 600-60 (Physical Performance Evaluation System), or referral to a medical evaluation board under AR 40-400 (Patient Administration), or physical evaluation board under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. 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. 3. The applicant provides a. A Biographical Sketch dated 29 June 2011. b. A memorandum for the commander of the U.S. Army Human Resources Command (HRC) stating that the applicant was ordered to show cause for retention in the under the provisions of AR 600-8-24, chapter 4, paragraphs 4-2b(5), 4-2b(8), 4-2b(l l), and 4-2c(5), due to misconduct, moral or professional dereliction, and adverse information. A BOI found the applicant did commit misconduct, moral or professional dereliction. The BOI recommended by a unanimous vote that the applicant be retained in the service. The recommendation was approved by the applicant’s commander. c. A memorandum from the Deputy Chief of Staff of Personnel, G1, of the Texas Army National Guard, stating that the applicant was considered as selective continuation. d. A letter requesting a Consolidated Officer packet reevaluation stating that the applicant was working with the Warrior Transition Battalion to make all corrections necessary for the Mandatory Department of the Army Promotion Selection Board. e. Officer Record Brief. 4. A review of the applicant's records shows: a. He enlisted in the Army National Guard on 3 February 2001 as an E-5. b. He was appointed as a commissioned officer at the grade of second lieutenant on 24 August 2002. c. He promoted to captain (CPT) on 8 February 2007. d. He served in Iraq from October 2004 to December 2005 and from February 2010 to April 2011. e. On 22 January 2013, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for one count of being incapacitated for the proper performance of his duties as a result of wrong indulgence in intoxicating liquor, and one count of wrongfully using marijuana. His punishment consisted of a written reprimand. He elected not to appeal. f. On 25 April 2013, separation proceedings were initiated for under AR 600-8-24 (Office Transfers and Discharges), chapter 4, paragraphs 4-2b(5), 4-2b(8), 4-2b(11 ), and 4· 2c(5), due to misconduct, moral or professional dereliction. g. On 29 May 2013, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with generalized anxiety disorder, cognitive disorder, and migraine headaches, and recommended for a referral to a physical evaluation board (PEB). h. On 5 June 2013, the PEB found him physically unfit to continue military service due to his anxiety disorder and migraine headaches. He received a disability rating of 70% with his disposition as permanent disability retirement. i. On 12 July 2013, an officer BOI was appointed to consider whether the applicant should be discharged. The BOI adjourned 16 September 2013 and found by the preponderance of the evidence and by a unanimous vote that the applicant did commit misconduct. Specifically: tested positive for marijuana; reported to formation smelling of alcohol; received a General Officer Article 15 for use of illegal drugs; and conduct unbecoming an officer and a gentleman. In view of the findings, the BOI voted unanimously to retain the applicant. j. On 10 December 2013, the convening authority (major general) approved the BOI's recommendation for retention. k. On 17 June 2014, he was notified that he was considered for the Fiscal Year 2014 Army Promotion List (APL) CPT-MAJ SELCON (and considered as selective continuation (SELCON). Selective Continuation is defined as an officer twice non-selected for promotion by a mandatory Reserve of the Army selection board. l. The applicant was retired on 20 June 2014 and placed on the permanent physical disability list on 21 June 2014. His DD Form 214 shows his grade as CPT/O-3 with 3 years, 8 months, and 25 days of net active service for this period, and with 13 years, 1 month, and 10 days of prior active service. He retired under AR 635-40, Chapter 4. The narrative reason for the separation states: Disability, Permanent (Enhanced). l. There is no evidence available that confirms the applicant was selected for promotion to MAJ or that he was in a promotable status at the time of his disability retirement. 5. By regulation, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Also by law, a promotable Soldier who is retired for disability is retired at the promotion grade (10 USC 1372). 6. By regulation, 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. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s counsel contentions were carefully considered. The applicant was considered but not selected for promotion to MAJ. He was medical retired at the rank of CPT. Regulatory guidance allows for the promotion of members on a promotion list when retired for medical disability. The record shows he was not on a MAJ promotion standing list at the time of his retirement. In addition, there is no evidence he was denied a promotion or consideration for promotion while pending a fitness determination. Based upon the preponderance of evidence, and regulatory guidance, the Board agreed there was no error or injustice in this case, and recommend denial of the requested relief. 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. 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 Army Board for Correction of Military Records (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, U.S. Code Section 1372, provides 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 retires list or, if his name was not carried on that list, on the date when he 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 reserved 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 his physical examination for promotion. 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 his physical examination for promotion. 3. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers. a. Paragraph 1-20(c) states while in the Disability Evaluation System (DES), Soldiers will not be required to maintain their Army Physical Fitness Test (APFT) or weapons qualification for the purpose of promotion eligibility or pin-on. b. Paragraph 1-20(e) 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 date before placement on the retired list. c. Paragraph 3-1e states the records managers are responsible for personnel information management (both personnel and training data accuracy and timeliness). Data accuracy ensures promotion points are reflective is a Soldier’s actual achievements and accomplishments. Each Soldier bears a personal responsibility to ensure their records are accurate and reflect all information necessary to compute accurate promotion scores. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010079 5 1