ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170012192 APPLICANT REQUESTS: The applicant, the Service Member’s (SM) mother, requests correction of the SM’s record to show the SM was promoted and advanced on the retired list to the rank/grade of sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email correspondence * DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 31 August 2016 * Memorandum, Subject: Line of Duty Determination), dated 18 November 2016 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 14 March 2017 * Memorandums for Record (MFR), dated 25 April 2017 * DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) * DA Form 3595 (Record Fire Scorecard) * Memorandum, Subject: Application for Army Grade Determination Review Board, dated 26 April 2017 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 July 2017 * DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 4 December 2009 and 26 October 2017 * DA Form 5016 (Chronological Statement of Retirement Points), dated 28 January 2019 * Excerpt Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 3-23 * Leave and Earnings Statements (LES) * Email correspondence * Power of attorney (POA) FACTS: 1. The applicant states she requests the SM be advanced on the retired list to the highest grade of E-5 that the SM would have held if it were not for his impending separation from the Army due to medical retirement, under the provisions of Title 10, United States Code (USC) section 1372 and AR 40-501 (Standards of Medical Fitness). 2. A review of the SM’s service record shows the following on: * 14 May 2009 – enlisted in the U.S. Army Reserve (USAR) and served through one reenlistment * 17 July 2017 – an informal PEB convened and the PEB found the SM physically unfit and recommended a combined rating of 90% and his disposition be permanent disability retirement * 26 October 2017 – the SM was honorably retired from the USAR by reason of disability, permanent, DD Form 214 shows it item 4a (Grade, Rate or Rank) specialist (SPC)/E-4 3. The applicant provides: * Email correspondence between her and the SM’s MEB counsel wherein she inquires about the SM’s promotion packet * DD Form 261 showing the findings of the line of duty investigation * Memorandum, Subject: Line of Duty Determination wherein the SM’s injury was determined to have occurred in the line of duty * DA Form 3947 showing the SM’s fitting and unfitting conditions * MFR’s wherein the unit requested the SM’s last weapons qualification and APFT be updated in his record * DA Form 705 showing the SM’s most recent APFT’s * DA Form 3595 showing the SM’s most recent weapons qualification * DD Form 214, dated 4 December 2009 providing at the time a record of his military service * DA Form 5016 showing the SM had 8 years, 5 months, and 12 days of qualifying service for retirement * excerpt from AR 600-8-19 showing the requirements for USAR command list integration to SGT * LES showing the SM had 7 years of service at the time and his date of rank was 3 September 2014 * email correspondence wherein the applicant corresponds with an official from Case Management Division about the SM’s unit promoting him and after his second brain surgery, the unit felt he would never get back to the person he was so they were not going to promote him * POA wherein the SM appointed the applicant as his agent 4. On 11 March 2019, the U.S. Army Physical Disability Agency (USAPDA) reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Agency Legal Advisor opined that, although AR 600-8-19, chapter 3-23(a)(1) states a Soldier despite lacking the actual promotion board appearance if having completed Structured Self Development (SSD) Level 1 or Basic Leadership Course (BLC), and having the required 47 months' Time In Service (TIS) and 11 months' Time In Grade (TIG), will be retired at the higher grade. A review of the SM’s case file and documents submitted to the Army Board for the Correction of Military Records (ABCMR) show there is no record of him completing the required SSD or BLC courses even though he had the required TIS and TIG. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. On 25 March 2019, the applicant in her rebuttal provided the SM’s SSD level 1 completion certificate, dated 29 June 2015. 6. AR 600-8-19 states, paragraph 3-23 (a)(1) states each month USAR Soldiers will be automatically integrated (command list integration) onto the SGT promotion recommended list when all of the following criteria are met despite lacking the actual promotion board appearance (Regular Army) or consideration (USAR) as outlined below for SGT: * 47 months TIS (to become eligible for promotion at 48 months) * 11 months TIG (to become eligible for promotion at 12 moths) * not otherwise denied by the commander * Soldier must have a minimum of 90 days remaining in service at the month of integration onto the recommended list * must be a graduate of SSD level 1 * have a current APFT or exception * reside on the recommended list with 39 points for SGT * no additional promotion points, regardless of qualifications or achievements are granted unless the Soldier goes through the formal board process 7. Per the provisions of Title 10 USC, section 1372, Soldiers on a promotion list who are retired for physical disability (Title 10 USC, sections 1201 or 1204) 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 regardless of cutoff scores, sequence numbers, or position availability. The noncommissioned officer education system requirement is waived. 8. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation): a. Paragraph 4-30 (Grade on Retirement or Separation for Physical Disability) the grade at which a Soldier is retired will be the highest of the options listed below in accordance with the provisions of Title 10 USC, section 1372. (1) Highest grade satisfactorily held. In accordance with AR 15–80 (Army Grade Determination Review Board and Grade Determinations), Soldiers determined unfit who are not currently serving in the highest grade served will be referred by the USAPDA to the Army Grade Determination Review Board, unless the Soldier is entitled to a higher or equal grade by operation of law (10 USC 1212 and 1372) or the Soldier upon being advised of his entitlement to a review fails to submit matters. If a Soldier referenced in this paragraph does not receive a review by the Army Grade Determination Review Board before the placement on the disability retired list, the Soldier may apply to the ABCMR for a review of their retired grade. (2) Grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. In general, this provision pertains to Soldiers on a promotion list. For Active Army and Reserve Component enlisted disability cases, this option is implemented under the provisions of AR 600–8– 19. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board found that, despite lacking the actual promotion board appearance, the applicant had achieved all the requirements for medical retirement at the grade of Sergeant/E5. Notably, he met the time in grade and time in service requirement and the applicant had achieved Structured Self Development Level 1. 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: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending his DD Form 214 as follows: * showing the applicant was promoted to the rank of sergeant (SGT)/E-5 on 25 October 2017 * amending Retirement Orders to show his retired rank as “SGT” vice “SPC,” effective 25 October 2017 * amending his DD Form 214 to show in blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) to show his rank/grade as “SGT” and “E-5”, respectively, vice “SPC” and “E4” and in block 12i the entry “2017-10-25” vice 2014-09-03 * amending U.S. Army Physical Disability Agency Orders to show his rank as SGT vice SPC in the standard name line and he was permanently retired in the rank of SGT vice SPC * paying him all pay due as a result of these corrections _______________X_________________ CHAIRMAN 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. AR 600-8-19 (Enlisted Promotions and Reductions) states, paragraph 3-23 (a)(1) states each month USAR Soldiers will be automatically integrated (command list integration) onto the SGT promotion recommended list when all of the following criteria are met despite lacking the actual promotion board appearance (Regular Army) or consideration (USAR) as outlined below for SGT: * 47 months TIS (to become eligible for promotion at 48 months) * 11 months TIG (to become eligible for promotion at 12 moths) * not otherwise denied by the commander * Soldier must have a minimum of 90 days remaining in service at the month of integration onto the recommended list * must be a graduate of SSD level 1 * have a current APFT or exception * reside on the recommended list with 39 points for SGT * no additional promotion points, regardless of qualifications or achievements are granted unless the Soldier goes through the formal board process 2. Per the provisions of Title 10 USC, section 1372, Soldiers on a promotion list who are retired for physical disability (Title 10 USC, sections 1201 or 1204) 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 regardless of cutoff scores, sequence numbers, or position availability. The noncommissioned officer education system requirement is waived. 3. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation): a. Paragraph 4-30 (Grade on Retirement or Separation for Physical Disability) the grade at which a Soldier is retired will be the highest of the options listed below in accordance with the provisions of Title 10 USC, section 1372. (1) Highest grade satisfactorily held. In accordance with AR 15–80 (Army Grade Determination Review Board and Grade Determinations), Soldiers determined unfit who are not currently serving in the highest grade served will be referred by the USAPDA to the Army Grade Determination Review Board, unless the Soldier is entitled to a higher or equal grade by operation of law (10 USC 1212 and 1372) or the Soldier upon being advised of his entitlement to a review fails to submit matters. If a Soldier referenced in this paragraph does not receive a review by the Army Grade Determination Review Board before the placement on the disability retired list, the Soldier may apply to the ABCMR for a review of their retired grade. (2) Grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. In general, this provision pertains to Soldiers on a promotion list. For Active Army and Reserve Component enlisted disability cases, this option is implemented under the provisions of AR 600–8– 19.