ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170017667 APPLICANT REQUESTS: * placement on the Retired List in the rank/grade of sergeant (SGT)/E-5 vice specialist four (SPC)/E-4 * a personal hearing 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), dated 28 June 2008 * Letter authored by Physician Assistant (PA) L- H-, dated 16 September 2008 * Permanent Order (PO) Number 034-003, dated 3 February 2009 * Veterans Affairs (VA) adjudication, dated 30 November 2009 * Memorandum, Subject: Promotion Eligibility for Medical Discharge, dated 1 June 2012 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings, dated 22 March 2013 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) page 2, dated 20 February 2014 * Orders Number 078-091, dated 19 March 2014 * Orders Number D 098-15, dated 8 April 2014 * Orders Number 119-009, dated 29 April 2014 * Iowa Army National Guard (IAARNG) Roll of Retired Enlisted Personnel Certificate, dated 12 May 2014 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 12 May 2014 * Army National Guard (ARNG) current annual statement, dated 28 July 2014 * Defense Finance and Accounting Service (DFAS) letter, dated 26 August 2014 * Service records * Line of duty and allied documents * VA letter and allied documents * Wolfe eye clinic documents * Iowa Heart Center documents 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, he received a memorandum in 2012, two years before being medically retired, clearly stating if his service was terminated under the MEB process he would be promoted following the results of the MEB. 3. A review of the applicant’s service record shows the following on: * 9 January 2004 – enlisted in the IAARNG * 20 February 2014 – an informal PEB convened and found the applicant physically unfit and recommended a rating of 30% and his disposition be permanent disability retirement * 8 April 2014 – Orders Number D 098-15, issued by the U.S. Army Physical Disability Agency, placed the applicant on the Retired list effective 13 May 2014 in the rank/grade of SPC/E-4 * 12 May 2014 – honorably retired from the ARNG by reason of permanent disability retirement, NGB Form 22 shows in item 5a (Rank) SPC 4. The applicant provides: * DD Form 214 providing a history of the applicant’s service for that period of service * Letter authored by PA L- H- wherein she provided the applicant with the results of a radiology examination of his back * PO Number 034-003, issued by the Office of the Adjutant General, wherein the applicant’s unit was ordered to annual training for the period 31 May – 14 June 2009 * VA claim adjudication wherein the applicant was awarded a 10% service connected disability for post-traumatic stress disorder * Memorandum, Subject: Promotion Eligibility for Medical Discharge wherein the applicant’s was identified as being on the IAARNG promotion list and was in a promotable status and authorized for promotion one day prior to his discharge due to physical disability in accordance with Title 10 USC, section 1372 * DA Form 3947 wherein the applicant was evaluated by an MEB for conditions that were physically unfitting * DA Form 199, page 2 showing the PEB determined in its findings the disability disposition was based on an injury or disease incurred in the line of duty * Orders Number 078-091, issued by the Office of the Adjutant General, wherein the applicant was released from his engineer unit to joint Force Headquarters, IA * Orders Number 119-009, issued by the Office of the Adjutant General, wherein the applicant was discharged from the ARNG and assigned to the Retired Reserve * IAARNG Roll of Retired Enlisted Personnel Certificate showing the applicant was placed on the rolls of retired enlisted personnel * ARNG current annual statement showing the applicant had 10 years of creditable service for retired pay * DFAS letter wherein the applicant was informed his disability retired pay account had been established * Service records providing a history of mobilizations * Line of duty determination and allied documents showing the applicant’s injuries occurred during deployment * VA letter and allied documents showing the applicant was diagnosed with sleep apnea and his claim submission * Wolfe eye clinic records showing the applicant was evaluated and treated for retinal vascular occlusion of the right eye * Iowa Heart Center records showing the applicant had a carotid duplex examination completed 5. On 14 May 2019, the 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, it is the recommendation of their office that the applicant be granted full relief. His state G1 confirmed that he was eligible for promotion at the time he was going through the Integrated Disability Evaluation System/MEB process. Also, there is nothing in his records detailing any reason that he should not have been promoted prior to his medical retirement. Therefore, based on the applicable regulatory guidance the applicant should be retroactively promoted with an effective date of 11 May 2014. The NGB Enlisted Policy Section concurs with this recommendation. The IAARNG concurs with this recommendation. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 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. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20(c) states 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. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. 8. AR 15-185 (ABCMR) states 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. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the advisory opinion. The Board discussed the nature of his separation and the conclusion of the advising official that he was eligible for promotion at the time of his disability processing and would have been promoted if not separated due to disability. The Board agreed with the advising official and determined that the applicant should have been retired at the grade of E-5. The Board further determined that the records were sufficient to render a fair decision and that a personal appearance was not warranted. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s Orders Number D 098-15, issued by the U.S. Army Physical Disability Agency, to place him on the Retired list effective 13 May 2014 in the rank/grade of SGT/E-5. 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 granting the applicant a personal appearance. 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 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. AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20(c) states 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. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. 3. 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 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. ABCMR Record of Proceedings (cont) AR20170017667 0 4 1