ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20170018850 APPLICANT REQUESTS: * promotion from Major (MAJ)/O-4 to Lieutenant Colonel (LTC)/O-5 * a personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Fiscal Year (FY) 2017 Lieutenant Colonel Army Competitive Categories Selection Board Results * Title 10 –Armed Forces, United States Code (USC), section 1372 FACTS: 1. The applicant states his retirement grade should be adjusted from MAJ/O-4 to LTC/O-5. 2. The applicant provides the above referenced documents which includes a self-authored statement, dated 7 July 2017, which states: a. He requests to be advanced on the retired list to the grade of O-5, under provisions of Title 10 USC, section 1372, paragraph 3. According to the applicant, the grade determination he received while undergoing the Individual Disability Evaluation Process was completed in 2016. The FY17, Operation Support and Force Sustainment selection board convened on 10 January 2017 and he was recommended for promotion to LTC. b. He did not receive a grade determination after the board recessed on 27 January 2017 and prior to being placed on the Temporary Disability Retirement List (TDRL). He claims that had he not been medically retired, he would have been promoted to LTC and believes that under Title 10 USC, section 1372, he is entitled to be retired at the grade of O-5. c. Being medically retired close to his 29-year mark of military service was not the manner in which he wanted to end his career. He adds that he would have rather remained on active duty and continued to serve. During his career he wanted and continues to want to serve our nation at the highest level. 3. A review of the applicant’s service records show: a. Having prior enlisted service, he completed the Officer Candidate Course at Fort Benning, Georgia as documented on his diploma dated, 12 April 2001. b. He graduated from the Engineer Officer Basic Course on 2 October 2001. c. He progressed through the ranks and effective 1 August 2010, he was promoted to MAJ. d. On 16 June 2016, the Informal Physical Evaluation Board Proceedings convened and found the Soldier was physically unfit and recommended the Soldier’s disposition to be placed on TDRL. e. According to the Orders Number 024-0160, dated 24 January 2017, the applicant was released from assignment and duty because of physical disability and under conditions that permit placement on the TDRL, effective 30 May 2017. f. The applicant retired from the Army on 30 May 2017. His DD Form 214 shows: * block 4a (grade, rate or rank) MAJ * block b (pay grade) O-4 4. On 22 June 2017, the Army released the FY17 LTC Army Competitive Categories Selection Board Results. The applicant’s name appeared on the list with the sequence number 0134. 5. On 3 July 2019, the applicant was removed from TDRL and permanently retired in the current rank/grade of MAJ/O-4. 6. By law and regulation, a. Title 10 U.S. Code 1372 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 1201of this title is entitled to the grade equivalent to the highest of the following: * 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 * 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 * the permanent regular or reserve 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 a physical examination * 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 a physical examination b. Army Regulation (AR) 600-8-29, in effect at the time, prescribes the officer promotion function of the military personnel system. The regulation supports the objects of the Army’s officer promotion system, which include filling authorized spaces with the best qualified officers. Paragraph 1-10, to be considered for promotion by a selection board, an officer must be on the active duty list on the day the board convenes. c. By regulation, 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found the relief was not warranted. The applicant’s contentions were carefully considered. Evidence of record shows he was selected for promotion; however, he was already retired when the promotion list was published and no longer eligible for promotion. The Board agreed there was no error or injustice 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. 20 November 2019 X CHAIRPERSON Signed by: 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 U.S. Code 1372 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 1201of this title is entitled to the grade equivalent to the highest of the following: * 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 * 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 * the permanent regular or reserve 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 a physical examination * 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 a physical examination 2. Army Regulation 600-8-29 (Officer Promotions), in effect at the time, prescribes the officer promotion function of the military personnel system. The regulation supports the objects of the Army’s officer promotion system, which include filling authorized spaces with the best qualified officers. Paragraph 1-10, to be considered for promotion by a selection board, an officer must be on the active duty list on the day the board convenes. 3. Army Regulation (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//