BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20180007605 APPLICANT REQUESTS: Correction of his record to show he was retroactively promoted to the rank/grade of master sergeant (MSG)/E-8. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: 2014 Promotion Board Proceedings for Promotion to MSG and E-7 Enlisted Promotion List (EPL) Approval, dated 10 March 2014 * Promotion point standing list * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 11 April 2014 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 underwent a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) after being assigned to the Individual Ready Reserve (IRR). At the date of his retirement he had completed 32 years and 4 months of service. During the MEB/PEB process he sent in all documentation showing he was eligible for promotion. No action was taken on his promotion. He is attaching the documentation he sent in to the U.S. Army Physical Disability Agency (USAPDA) email address. He was informed by Staff Sergeant M- W-, a special actions noncommissioned officer (NCO) at USAPDA, that his last enlisted record brief showed he was flagged. He sent the DA Form 268 showing the flag was removed and the promotion list he was on. He had been an Active Guard/Reserve Soldier in the West Virginia Army National Guard (WVARNG) and then was assigned to the IRR in October 2014. The promotion list he was on was from 2014. 3. A review of the applicant's official records shows the following: a. On 20 November 1985, the applicant enlisted in the ARNG. b. On 18 February 2011, Orders Number 049-607, issued by the Joint Forces Headquarters (JFHQ), Adjutant General's Department, promoted the applicant to the rank/grade of sergeant first class (SFC)/E-7, effective on 18 February 2011, with a date of rank of 18 February 2011. c. From 13 March – 25 March 2011, the applicant attended and completed the Army Medical Department NCO Advanced Course. d. On 3 October 2014, Orders Number 276-610, issued by the JFHQ, Adjutant General's Department, honorably discharged the applicant from the ARNG and assigned him to the U.S. Army Reserve (USAR) Control Group (Retired) by reason of selective or qualitative retention action. e. On 19 June 2015, Orders Number 170-621, issued by the JFHQ, Adjutant General's Department, amended Orders Number 276-610 insomuch as changing his USAR Control Group (Retired) assignment to the USAR Control Group (IRR). f. On 30 June 2015, Orders Number 181-613, issued by the JFHQ, Adjutant General's Department, amended Orders Number 276-610 insomuch as changing the applicant's USAR Control Group (IRR) to the USAR Control Group (Reinforcement). g. On 21 November 2017, a PEB convened, and the PEB found the applicant physically unfit and recommended a rating of 60 percent and his disposition be permanent disability retirement. h. On 21 February 2018, Orders Number 052-09, issued by the USAPDA, retired the applicant by reason of physical disability, effective on 28 March 2018. He was retired in the rank of SFC. 4. The applicant provides: a. Memorandum, Subject: 2014 Promotion Board Proceedings for Promotion to MSG and E-7 EPL Approval, showing the board convened on 3 March 2014, and the list was approved and would take effect immediately and superseded any previous list for promotion to MSG and was valid until exhausted. b. Promotion point standing list showing the applicant's name on page 15 and an expiration of term of service of 27 October 2018. c. DA Form 268 showing the flagging action against the applicant was closed favorably and removed. 5. See applicable references below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board agreed that the applicant's status on the ARNG promotion list expired when he was transferred to the USAR. As such, the ARNG promotion list was no longer a basis for promoting him to MSG prior to his disability retirement. Based on a preponderance of evidence, the Board determined there is no error or injustice in the rank he held at the time of his retirement. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he or she is serving on the date when his or her name is placed on the temporary disability retired list or, if his or her name was not carried on that list, on the date when he or she is retired. b. The permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007605 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1