ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2019 DOCKET NUMBER: AR20180000151 APPLICANT REQUESTS: correction of his record to show he was reinstated to the rank of sergeant (SGT)/E5, and that he transferred his Montgomery GI Bill (MGIB) to his dependents. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders·08-108-00001, promotion to SGT * self-authored letter FACTS: 1. The applicant states during the time of his reduction he was mentally unstable, due to desire to not be present, he was held accountable for his mental illness. Also, with the disabilities he is warranted, his MGIB is most likely going to be wasted. He would like to exercise his right to transfer his MGIB to his dependents. The decision to reduce him was a malicious tactic by his leadership. The mentality of their decisions was to set an example to others and keep the stereotype that mental health is not a true disability. He provided a self-authored letter requesting reinstatement of his rank and military service (letter enclosed in packet). 2. The applicant provides Orders·08-108-00001, dated 17 April 2008, issued by Headquarters, 96th Regional Readiness Command, Salt Lake City, UT, which shows he was promoted to the paygrade of SGT/E-5. 3. A review of the applicant’s service record shows: a. Having had prior enlisted service in the Regular Army (RA), he reenlisted in the U.S. Army Reserves on 7 July 2010. b. He was promoted to SGT on 1 May 2008 while in the RA. c. His DA Form 199 (Informal Physical Evaluation Board Proceedings), convened on 2 October 2015, states the board found the Soldier physically unfit and recommended a rating of 60% and that the Soldier's disposition be permanent disability retirement. d. He was honorably retired on 17 January 2016 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, disability, permanent (enhanced). He completed 8 years, 10 months, and 13 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) private first class (PFC) and E03 * block 12i (Effective Date of Paygrade) 2015 08 09 4. DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 12 December 2015, corrected block 12i, to read, “20150915”. 5. An advisory opinion was obtained from the Army Education Incentives Team, U.S. Army Human Resources Command (AHRC) on 21 March 2019. The advisory official was asked to provide an opinion on the applicant's request to transfer the Post 9/11 GI Bill Education Benefits. The advisory opinion recommended disapproving [applicant’s] request to transfer his Post 9/11 GI Bill Education Benefits. The advisory official provided a three page detailed memorandum for review (detailed memorandum enclosed in packet). 6. An advisory opinion was obtained from the Promotions Branch, U.S. AHRC on 15 July 2019. The advisory official was asked to provide an opinion on the applicant's reinstatement to the rank of SGT. The advisory official consulted the following sources: unit documents (e.g. two Article (ART) 15 packets), the Interactive Personnel Electronic Records Management System, applicant’s DD Form 149, and records supplied in his file. The advisory official noted the [applicant] was reduced from SGT to specialist (SPC) under Article 15 Uniformed Code of Military Justice (UCMJ), which he signed on 2 June 2015. The [applicant] was reduced again from SPC to PFC on 15 September 2015. 7. The applicant was provided a copy of the above advisory opinions to give him an opportunity to submit comments. He did not respond. 8. By law, Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of Public Law 110-252 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, have at least 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 9. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states for promotion to SGT, a Soldier will be recommended for promotion by their unit commander and the final decision to integrate a Soldier onto the promotion recommended list rests with the promotion authority. 10. By law and regulation, Soldiers on a promotion list who are retired for physical disability or who are placed on the temporary disability retired list (TDRL) 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 or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be fully eligible for promotion. 11. Army Regulation 635-5 (Separation Processing and Documents), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. The instructions for completing the DD Form 214 states for: * for blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade), verify that active duty grade or rank and pay grade are accurate at time of separation * for block 12i (Effective Date of Paygrade) 6 (Effective Date of Pay Grade), from the most recent promotion document (or reduction instrument), enter the effective date of promotion to the current pay grade. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board found they agreed with the advisory officials. Public law allowed for the transfer of his education benefits since August 2009. He had ample time to transfer his education benefits prior to and during his medical retirement, which occurred in 2015. In addition, his record shows he was reduced in rank by way of NJP. Based upon the preponderance of the evidence, the Board determined there is insufficient evidence to grant relief, 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. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of Public Law 110-252 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, have at least 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 2. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel. a. Paragraph 1-20 (Promotion of Soldiers in the Disability Evaluation System (DES)), Soldiers in the (DES) process who are pending a medical fitness determination (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) remain otherwise eligible for promotion consideration, selection, and pin-on. (1) The guidance in subparagraphs 2a (2) and (3) below, also pertains to all Soldiers who have reached the time in service (TIS) requirements for the next level of automatic promotion (private two (PV2) to specialist (SPC)). (2) Per the provisions of 10 USC 1372, Soldiers on a promotion list who are retired for physical disability (10 USC 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (10 USC 1202 or 1205) 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 or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be fully eligible for promotion in accordance with (IAW) paragraph 1–10. (3) Per the provisions of 10 USC 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. Further, the Soldier will be promoted effective on the Soldier’s separation date. For Reserve component Soldiers, such promotions will occur without regard to vacancy. b. Section II (Processing Enlisted Promotions to Private E–2, Private First Class, and Specialist), paragraph 2-3 (Rules), c. Eligibility criteria for automatic (Regular Army (RA) and U.S. Army Reserve (USAR)) or immediate (Army National Guard) promotion to PV2, private first class (PFC), and SPC will be as follows: (1) Promotion to PV2 is 6 months TIS. (2) Promotion to PFC is 12 months TIS and 4 months’ time in grade (TIG). (3) Promotion to SPC is 24 months TIS and 6 months TIG. (4) Soldiers must meet eligibility criteria in paragraph 1–10. (5) Any Soldier previously reduced (for misconduct, inefficiency, or cause) must be fully qualified (without a waiver) for promotion to the next higher rank. c. Chapter 3, states, for promotion to SGT, a Soldier will be recommended for promotion by their unit commander and the final decision to integrate a Soldier onto the promotion recommended list rests with the promotion authority. d. Section VI (Selecting Soldiers for Promotion), paragraph 3–22 (Rules), b. RA and USAR Active Guard Reserve). Headquarters Department of the Army establishes promotion cutoff scores and selects (by social security number) Soldiers for promotion from the monthly sergeant and staff sergeant promotion selection by-name list who meet or exceed the announced cutoff score. Selection is by three character military occupational specialty (MOS) and accomplished on a monthly basis in order to support MOS and/or grade readiness (except for language requirements, which are by language skills, as determined by the commanding general, Human Resources Command). Budgetary constraints are considered. Soldiers on the by-name selection list will be promoted (if otherwise qualified IAW paragraph 1–10). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000151 4 1