IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20180004427 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20180004427 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of her records to show she retired in the rank/grade of sergeant first class (SFC)/E-7 vice staff sergeant (SSG)/E-6. 2. The applicant states: a. While she was a patient at Letterman Army Hospital, San Francisco, CA, an officer came into her room to have her sign a Letter of Acceptance for Promotion to SFC/E-7. This rank is also referred to as Platoon Sergeant. She signed the letter in the presence of the officer and a nurse. When the doctor entered the room, the nurse told him to congratulate her (the applicant) on her promotion to E-7. The doctor grabbed the letter, tore it up, and threw it in the garbage. He told her that she did not deserve the promotion and that she was being medically discharged. This was the first she had heard about the proposed discharge. This was not fair and not right. She felt betrayed and hurt. She served our country with pride and honor. She worked hard and really deserved that promotion. This was a terrible injustice. She requests that her promotion to SFC/E-7 be recognized and her military records be corrected. b. Prior to her hospitalizations, she passed her exams for promotion to a senior noncommissioned officer position. She was also interviewed by a Promotion Review Board. After she was notified that she would be medically discharged, she tried desperately to challenge the proposed discharge. She went before a medical review board (i.e., medical evaluation board (MEB)). She was subsequently medically retired from the Army with a 30 percent disability rating. After discharge, she required a lot of medical treatment and never pursued a correction of her military records. She was not aware of that option. She had a stroke and was admitted to the Community Living Center (CLC) at the Manchester Department of Veterans Affairs (VA) facility about 6 years ago. She was recently diagnosed with metastatic cancer and was sent to the hospice unit in October 2017. 3. The applicant provides a privacy release form, an email from a VA service officer to a Member of Congress, and a medical prognosis statement. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 27 May 1975 and she held military occupational specialties 71L (Administrative Specialist) and 71M (Chaplain's Assistant). 3. She reenlisted on 2 December 1977 and on 9 October 1980. She was promoted to SSG/E-6 on 1 February 1981 with a date of rank of 2 January 1981, while assigned to Presidio of San Francisco. 4. On 6 October 1982, an MEB convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medical conditions of: * Chronic pain syndrome * Chronic constipation * Bilateral bursitis * Chronic bronchitis * Chondromalacia 5. The MEB found her not medically qualified for continuation on active duty and recommended her referral to a physical evaluation board (PEB). The MEB proceedings were approved. On 4 November 1982, the applicant was counseled and she agreed with the MEB's findings and recommendation. She also indicated she did not desire to continue on active duty. 6. On 14 December 1982, a formal PEB convened with the applicant present. The PEB found the applicant's conditions prevented her from performing the duties required of her grade and MOS and determined that she was physically unfit due to chronic pain syndrome, history of seizures, and cold urticaria. a. The formal PEB rated her conditions and recommended a 50 percent combined disability rating. The PEB recommended her placement on the temporary disability retired list (TDRL). b. The applicant acknowledged she had been counseled with respect to the recommended findings of the PEB and knew that she had the right to rebut the findings or to request an extension of time to prepare a rebuttal. She agreed with the recommended findings. 7. On 12 January 1983, the U.S. Army Military Personnel Center, Alexandria, VA, published Orders D8-33 releasing her from active duty on 26 January 1983 and placing her on the TDRL in the retired rank of SSG effective 27 January 1983. 8. She was honorably retired on 27 January 1983 under the provisions of Title 10, U.S. Code, section 1202 and section 1372. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 2 years, 3 months, and 18 days of active service and 5 years, 4 months, and 12 days of prior active service. It also shows in: * Item 4a (Grade, Rate or Rank), SSG * Item 4b (Pay Grade), E-6 * Item 12h (Effective Date of Pay Grade), 2 January 1981 9. She underwent a TDRL PEB on 29 June 1984 that recommended her permanent retirement at a combined rating of 40 percent. Accordingly, on 7 August 1984, the U.S. Army Military Personnel Center, Alexandria, VA, published Orders D142-1 removing her from the TDRL and permanently retiring her in the rank of SSG effective 21 August 1984. 10. Her records do not show she was a promotable SSG or that she had been promoted to SFC/E-7. REFERENCES: 1. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance for preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). 2. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policy and procedures for the management of enlisted personnel. Chapter 7 provided for enlisted promotions. a. Selection and promotion to pay grades E-7, E-8, and E-9 were via centralized promotion boards. A centralized promotion system had been in effect for promotion of enlisted soldiers since 1 January 1969 for E-9, 1 March 1969 for E-8, and 1 June 1970 for E-7. b. Eligibility for promotion consideration to grades E-7, E-8, and E-9 is based on date of rank. In addition, for E-8 and E-9, cumulative enlisted service is also required. The criteria for primary and secondary zones of consideration for each grade was announced by Headquarters, Department of the Army (HQDA), before each board. Boards convened at HQDA to select and recommend enlisted soldiers for promotion to grades E-7, E-8, and E-9. Selections by HQDA boards was based on impartial consideration of all eligible Soldiers in the announced zone. Selections would be made by MOS for E-7, and career management filed (CMF) for E-8 and E-9. c. HQDA announced results of selection boards by a command letter. The letter would include the Letter of instruction, Board membership, and Recommended list. Names of soldiers recommended for promotion would be placed in alphabetical order. Sequence numbers will be determine by date of rank. They would be assigned based on seniority of date of rank. d. The Enlisted Standby Advisory Board (STAB) considered records from the primary and secondary zones that were not reviewed by a regular board. A STAB would consider the records of those in the primary zone that was not properly constituted due to a major material error when reviewed by a regular board. Only Soldiers who were not selected from a primary zone of consideration will be reconsidered for promotion. Soldiers who were considered in a secondary zone will not be reconsidered. 3. Title 10, U.S. Code, section 1372 (grade on retirement for physical disability) 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 temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. 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. b. 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. c. 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. d. 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. DISCUSSION: 1. The applicant served from 27 May 1975 to 26 January 1983. She was promoted to SSG/E-6 in January 1981. She entered the disability system around October 1982 (the date of her MEB), and she was placed on the temporary disability retired list in January 1983. 2. By law, a Soldier who whose name is placed on the TDRL is entitled to the grade equivalent to the highest of the following: * The grade or rank in which he/she is serving on the date when his/her name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired * The highest temporary grade/rank in which he/she served satisfactorily, as determined by the Secretary of the armed force from which he/she is retired * The permanent regular or reserve grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of a physical examination * The temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she 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 3. There is no evidence in the applicant's records that confirms she was selected for promotion to SFC by a centralized board or that her name was added to a centralized promotion list. Likewise, there is no evidence of a promotion instrument (orders) in her records that confirms she was promoted to the rank/grade of SFC/E-7 before she retired. 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. ___________X________________ Chairperson 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004427 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180004427 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2