ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20170019315 APPLICANT REQUESTS: in effect, his rank of staff sergeant (SSG)/E-6 be corrected to sergeant first class (SFC)/E-7. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 states due to a violation of United States Code (USC) to, whereas, he was withheld promotion during his medical retirement, he wants his rank corrected. His discharge states that he was an SSG who was honorably discharged for reason of disability. The 10 USC 1212 and USC 1372 states, (3) disability retirement grade: under 10 USC 1372, the grade at which a Soldier is permanently retired for disability or placed on Temporary Disability Retired List (TDRL) is the highest of the following options: current grade; highest grade satisfactorily held; or the grade to which the Soldier would have been promoted had it not been for the disability retirement. The latter option includes those on a promotion list who have met any required cut-offs score and those who have met time requirements for an automatic promotion. He never received a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) or DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), until he recently requested a copy. He was medically discharged due to injuries sustained from Operation Iraqi Freedom. Only recently have he been made aware of 10 USC 1212 and 1372. 3. A review of the applicant’s service records shows the following: a. He was inducted into the Army of the United States on 30 August 1995. b. Orders 036-002, dated 23 February 2004 shows he was promoted to SSG with effective date of 21 January 2004. c. On 18 March 2005, he was honorably released from active duty and transferred to the OHARNG to Army National Guard of the Ohio (OHNARNG) for completion of required active service in the rank of SSG. He completed 1 year, 3 months, and 1 day of total active service. d. On 10 August 2007, he was honorably discharged from the OHARNG for para 8- 351(8) National Guard Regulations (NGR) 600-200 medically unfit for retention. He completed 11 years, 11 months, and 11 days of total service. e. Orders D159-01, dated 7 June 2012, shows he was removed from the TDRL on 9 February 2008 because of permanent physical disability and permanently retired in his current grade of rank of SSG. 4. On 19 March 2019, the National Guard Bureau (NGB) Advisor rendered an advisory opinion in the applicant’s case. The advisor stated: a. In accordance with (IAW) Army Regulation (AR) 600-8-19 dated 11 July 2007, Chapter 1-27, paragraph a (2), “A Basic Noncommissioned Officers Course (BNCOC) graduate for consideration eligibility to SFC. The minimum time in grade for promotion from SSG to SFC is 36 months and 9 years of service time and obligation to 2 years of service. IAW AR 600-8-19 dated 11 July 2007, Chapter 1–20 (a). Soldiers who are pending referral to a MOS/medical retention board (MMRB) under AR 600–60 or referral to a medical evaluation board under AR 40–400 or physical evaluation board under AR 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. b. There was no evidence that this Soldier was on the promotion list and was not promotable due to the lack of NCOES, specifically BNCOC. Therefore, we recommend denial of the Soldier’s request for promotion. 5. On 11 April 2019, the applicant was provided a copy of the advisory opinion and given the opportunity to provide a rebuttal, however, he did not respond. 6. Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. Source documents consist of DA Form 2-1, separation orders, or any other available record. On DD Form 214 item 4a, enter the rank and pay grade at the time of separation. 7. Title 10, USC, section 1372 (effective 4 January 1995), 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 TDRL under section 1202 or 1205 of this title, is entitled to the grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the advisory opinion’s finding that there was no evidence that the applicant was on a promotion list and was not in a promotable status due to a lack of NCOES (BNCOC) and the applicant failed to provide a rebuttal to those findings, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s rank reflected on his DD Form 214. 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 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. Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. Source documents consist of DA Form 2-1, separation orders, or any other available record. On DD Form 214 item 4a, enter the rank and pay grade at the time of separation. 3. Title 10, USC, section 1372 (effective 4 January 1995), 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 TDRL under section 1202 or 1205 of this title, is entitled to the grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. ABCMR Record of Proceedings (cont) AR20170019315 4 1