ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 March 2020 DOCKET NUMBER: AR20180013879 APPLICANT REQUESTS: * retroactive promotion to Colonel (COL) * retroactive entitlements based on his correct rank of COL * increase of his disability to 75 percent * Federal Court of Claims appeal procedures if the Board's findings are not in his favor * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter of recommendation * self-authored letter * self-authored letter to Case Management Division * letter from Board on previous ABCMR case * previous ABCMR case AR20160005184 * Medical Advisory Opinion previous Army Board for Correction of Military Records (ABCMR) case * letter from Senator on behalf of applicant * Retirement Orders * Memorandum to a Senator * memorandum through Senator to Board * previous application * response to previous case * Military Personnel Message 15-281 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army ABCMR in Docket Number AR20160005184 on 29 March 2018. 2. The applicant states: a. He respectfully requests his records reflect, with retroactive entitlements, the higher grade of COL/O6 in accordance with (IAW) Title 10 US Code (USC) section 1372 and 1375. b. The error of his records is based on Title 10 USC 1372 grade on retirement for physical disability which states he would have been promoted had it not been for the physical disability for which his retirement negated as a result of a physical examination and medical retirement pending the board results. c. He functioned in the promotable grade for 7 months which he would have been promoted had it not been for the physical disability. The eligibility for promotion to COL based on cumulative years of service or years of service in current grade and the disability was discovered resulting in the initiation of the medical board and medical retirement. d. The applicant understood that Army Regulation 15-80 stated "officers being processed for physical disability separation or disability retirement not currently serving in the highest grade served would be referred to the Army Grade Determination Review Board for a grade determination, unless the officer is entitled to a higher or equal grade by operation of law. e. IAW Title 10 US 1372, he temporarily functioned in the grade of COL/O6 as the primary advisor to the Deputy G-6 upon the permanent change of station of his predecessor and functioned in the position for 7 months prior to the physical disability and the initiation of the medical board. He also functioned as the Chief of Current Operations for Special Operations for 6 months a major. f. Based on his temporary duty position of 7 months, 5 months as the Chief of Current operations, Officer Evaluation Reports (OER), and the MILPER Message Number 15-231, he would have been promoted to the rank of COL had it not been for the medical disability affecting his ability to continue to perform his military duties. Title 10 USC 1375 entitles the advancement to him while on the retired list. In conclusion, he respectfully requests favorable relief and advancement to COL as the documentation he provided as evidence would support. 3. The applicant's service records contain the following documents for the Board's consideration: a. A DA Form 199-2 (US Army Physical Disability Agency Revised Physical Evaluation Board (PEB) Proceedings), dated 28 July 2015 which shows the board found the applicant was physically unfit for duty and recommended a rating 70 percent and that he applicant be permanently retired due to disability. b. A DD Form 214 (Certificate of Release or Discharge from Active Duty) showing the applicant was transferred to US Army Reserve Control Group (Retired) on 21 October 2015 in the rank of Lieutenant Colonel with a date of rank of 12 September 2012. 4. The applicant provides the following documents for the Board's consideration: a. A letter of recommendation from a Lieutenant General (Retired), dated 2 December 2016, which states: (1) The letter is a post retirement recommendation for the applicant. She's known him for a number of years. He is among the most selfless, dedicated, and performance oriented officer. She had the honor to work with him. He always displayed a professional demeanor and he served with distinction and honor in the United States Army. (2) While the applicant was a Strategic Signal Operations Officer for United States Army Forces Command (FORSCOM) he served as the author's liaison officer. She spent a great deal of time with the applicant and said he was always positive, earnest, and professional. He was an upright officer of high character, as evidenced by his devotion to duty and effort to ensure each step of her itinerary was met with timely accountability. He was upbeat personality and willingness to help left an unforgettable impression. The applicant exceeded her standard for the level of performance and behavior expected of a military officer. (3) In the author's opinion, the applicant deserves a favorable finding of promotion to COL by the Board. Based on his past experience with the applicant, she believes he would have made the active duty promotion list had he continued his military career. b. A self-authored memorandum for the Board, dated 26 February 2016, which states: (1) IAW Title 10 chapter 60 Retired Grade, the applicant is requesting favorable relief for advancement to COL. He functioned as the Chief of Operations for Special Operations as a Major, which was a COL position. He was in this position while he was deployed. He retired on 22 October 2015 in the grade of Lieutenant Colonel, he satisfactorily held the positions as acting Senior Reserve Component Advisor to the Deputy Chief of Staff G-5 for 7 months while on active duty from 16 March 2013 through 30 September 2013. Due to a surgical procedure on 5 September 2013, a medical board was initiated to assess his physical readiness. After the procedure, he continued to function after the rating period in the position until a replacement was identified while on medical leave due to the permanent change of station of the previous advisor. (2) IAW Section 1370 rules for retirement in highest grade held satisfactorily, unless entitled to a higher retired grade under some other provision of law, a commissioned officer of the Army who retired under any provision of law shall be retired in the highest grade in which he served on active duty satisfactorily as determined by the Secretary of the Army concerned, for not less than six months. (3) The applicant cites Title 10 sections 1370 and 1372 within his letter and states based on the documentation he provided to the Board, he was petitioning for correction of military records for favorable relief and promotion to COL. c. A self-authored memorandum for the board, dated 23 February 2018, which states: (1) He thanks the Board for taking the time to review his application for physical disability promotion and disability retirement pay submitted on 26 February 2016. (2) Based on the Board's decision in his previous ABCMR case, he concurred with the findings of the conditions of not being found unfit for an increase in military retirement compensation except the migraine headache. Due to insufficient evidence, he will not contest for the migraine condition to be found unfitting. He would request to submit additional medical documentation with regards to the submission for military retirement pay increase for service connected disabilities that were identified as unfitting. These conditions were unfit by the formal PEB and rated based on evidence provided to equal the military retirement pay of 70 percent. He is requesting a review with the additional evidence to increase the military retirement pay to 75 percent. (3) He included an examination dated 23 May 2015 for Lumbar Retrolisthesis and fusion of left great toe. Based on the Board's report, the applicant could not determine or identify an opinion for his requested promotion to higher grade. As identified on the applicant, he is using the MILPER message dated 20 July 2015, Congressional Law 10 USC 1372 and 1375 because he served in a COL position for 6 to 7 months , OERs, and a recommendation letter from Signal Corps Lieutenant General (Retired) to request favorable findings for post-retirement promotion to COL due to medical retirement. (4) His determination to be the best Soldier masked the medical conditions. He was taught early in his career to "drive on through the pain" and never display weakness. It had been his intent to serve his country until he was able to do so. Having the first surgery on his left great toe in 2006 was difficult enough along with the other medical issues that started to surface. He decided to withhold the medical conditions from leadership. He regrets those decisions. The physical and emotional treatment might have prolonged his career. He never received a negative OER and he wasn't going to start in the later stages of his military career. It's a decision to not seek early treatment for the medical issues, he will have to continue to find a way to deal with. (5) He formally requests a favorable finding based on the evidence provided on 26 February 2016 that he be promoted post-retirement from Lieutenant Colonel to COL. He thanks the Board for their time and says God Bless America and the United States Army. d. A letter from the Director of the ABCMR, dated 30 March 2018 informing the applicant the Board denied the applicant's request for AR20160005184. The applicant also provided the Record of the Proceedings from the Board. e. A portion of the Medical Advisory from the physicians at the Army Review Boards Agency, dated 9 February 2018 from AR20160005184. f. A letter from the applicant's Senator to the Chief of Legislative Liaison, dated 24 October 2018 requesting a review of the applicant's documentation and governing statutes and regulations regarding the applicant's request. g. Orders 216-0910, published by Headquarters, US Army Cyber Center of Excellence and Fort Gordon, dated 4 August 2015, which show the applicant retired on 21 October 2015. h. A memorandum through the applicant's Senator to the Board, dated 10 October 2018, which states: (1) The purpose of the memorandum was to address the Board applicant denial for benefits. He is requesting reconsideration for the decision letter based on updated evidence and argument. (2) The updated evidence and argument is regarding promotion rank/grade from Lieutenant Colonel to COL. Previous evidence he provided included Title 10 USC Section 1372. He included other information from Title 10 USC Section 1372 as additional evidence for his request. (3) He also included two Federal court cases Friested v. United States and Grayson v. United States. In both of these cases it 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 Title 10 or whose name is placed on the temporary disability retired list is entitled to the grade equivalent to the highest temporary grade or rank in which he served satisfactorily. Under the facts and circumstances of the cases the military was in error when it refused to advance the plaintiffs to the grade requested. (4) The applicant reiterates the information he provided with his first ABCMR case regarding the positions he held, the MILPER message and OERs. (5) The applicant includes information from Title 10 USC 1370 and 1375 regarding the highest grade held. (6) Based on the additional evidence of various case laws provided, the applicant requests favorable finding for retirement promotion to COL and compensation at 75 percent accordingly. Retirement pay is an offset between retirement pay and VA Disability vice concurrent. He requests the formal decision be forwarded to his state Senator. He also requests Federal Court Claims appeal procedures in pursuant to the Board's findings other than favorable promotion to COL and 75 percent pay. i. A self-authored memorandum for the Board, dated 25 February 2016 which reiterates the positions he held and the provisions of Title 10 USC 1370 and 1372. j. A self-authored memorandum to the Case Management Division, dated 13 November 2018 which again reiterates the positions the applicant has held and the statutes and court cases to support his request. k. A DD Form 149 wherein the applicant states his retirement pay should reflect and increase to 75 percent based on 10 USC Chapter 69 Section 1375 and retirement rank to COL based on 10 USC Chapter 69 Section 1371. l. MILPER Message 15-281, dated 21 September 2015, which gave guidance regarding the promotion board for officers. 5. The applicant's previous ABCMR Case AR20160005184 is included for the Board's review wherein the applicant's request for an increase in his disability to 75 percent and promotion to the rank of COL was denied by the Board. 6. In the processing of the applicant's previous case, an advisory opinion was obtained on 9 February 2018 from the Army Review Board Agency Senior Medical Advisory. The advisory stated the applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, rated condition, disability determination, and/or disability ratings for the discharge in the case. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 7. The applicant was provided a copy of this advisory opinion to provide him an opportunity to comment and/or submit a rebuttal. The applicant responded as 4c of this Record of Proceedings. 8. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 9. The ABCMR may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 10. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer ... appointed to a higher grade ... if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 11. See applicable references below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found insufficient evidence to grant relief and amend the ABCMR decision set forth in Docket Number AR20160005184 on 29 March 2018. 2. The applicant requests retroactive promotion to O-6/Colonel (COL). However, the ABCMR lacks the authority to promote officers. To do so would violate the Appointments Clause of the United States Constitution. As such, the Board determined it has no authority to grant the specific relief requested by the applicant. 3. The Board considered, in the alternative, whether referral to a Special Selection Board (SSB) for consideration of promotion to O-6/COL was appropriate in light of the applicant’s contentions and the evidence, but determined a preponderance of the evidence did not support granting relief. Initially, the Board noted that, although the applicant would have been eligible for promotion Board screening (below the zone) to O-6/COL when the promotion Board met on 1 December 2015, the applicant retired on 21 October 2015, before the promotion Board ever convened. The applicant was not screened nor selected for promotion to COL at any time before or during the IDES process. As such, the Board determined that a preponderance of the evidence did not support a finding of a material error and, as such, referral to an SSB was not warranted. 4. The applicant contends that because he served in an O-6/COL position, he should be promoted to O-6/COL. However Public Law allows retiring officers retain their grade when they were promoted to that grade. This does not apply in the applicant’s case as he was never promoted to O-6/COL. 5. Due to the above findings, the Board found insufficient evidence that the applicant was entitled to retroactive payment of O-6/COL pay and benefits. 6. Regarding the applicant’s request to increase his disability to 75 percent, the Board found insufficient evidence to grant relief. The Board agreed with the Medical Advisory opinion dated 9 February 2018. The applicant’s medical conditions were thoroughly screened, evaluated and rated during the DES process and resulted in a permanent military disability rating of 70% at time of the applicant’s separation. The Board agreed that, although the VA increased his disability to 75% post-service, the Army has neither the role nor the authority to compensate for progression or complications of service- connected conditions after separation. That role and authority is granted by Congress to the Department of VeteransAffairs, operating under a different set of laws. 7. The Board is not an investigative body. The Board has the authority to correct military records when warranted, but has no authority to provide legal services or advice. Therefore, the Board has no authority or purview to provide the applicant Federal Court of Claims appeal procedures if the Board's findings are not in his favor. 8. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 2. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other than General Officers, states officers and warrant officers who have either failed selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or SSB as appropriate. This document also provides that promotion advisory boards/SSBs will convene to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration contained a material error when reviewed by the mandatory selection board. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers. Chapter 7 provides that SSBs are governed by the same instructions provided the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 states, SSBs may be convened under Title 10 USC Section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army (HQDA) discovers one or more of the following: (1) An officer was considered from in or above the promotion zone by a regularly-scheduled board because of an administrative error (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. A material error is defined as being of such nature that in the judgement of the reviewing official, had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable change that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board. 5. Title 10 USC 1372 (Grade on Retirement for Physical Disability: Members of Armed Forces), 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. 6. Title 10 USC 1370 (Commissioned Officers: General Rule; Exceptions), states unless entitled to a different retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, subject to paragraph (2) and subsection (b), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. When an officer is under investigation for alleged misconduct at the time of retirement, the Secretary concerned may conditionally determine the highest grade of satisfactory service of the officer pending completion of the investigation. Such grade is subject to resolution under subsection (b)(3). a. In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. b. In the case of an officer to be retired in a general or flag officer grade, authority provided by the Secretary of Defense to the Secretary of a military department under subparagraph (A) may be exercised with respect to that officer only if approved by the Secretary of Defense or another civilian official in the Office of the Secretary of Defense appointed by the President, by and with the advice and consent of the Senate. c. Authority provided by the Secretary of Defense to the Secretary of a military department under subparagraph (A) may be delegated within that military department only to a civilian official of that military department appointed by the President, by and with the advice and consent of the Senate. d. The President may waive subparagraph (A) in individual cases involving extreme hardship or exceptional or unusual circumstances. The authority of the President under the preceding sentence may not be delegated. e. In the case of a grade below the grade of lieutenant general or vice admiral, the number of members of one of the armed forces in that grade for whom a reduction is made during any fiscal year in the period of service-in-grade otherwise required under this paragraph may not exceed (i) the number equal to two percent of the authorized active-duty strength for that fiscal year for officers of that armed force in that grade or (ii) in the case of officers of that armed force in a grade specified in subparagraph (G), two officers, whichever number is greater. f. Notwithstanding subparagraph (E), during fiscal years 2013 through 2025, the number of lieutenant colonels and colonels of the Army, Air Force, and Marine Corps, and the number of commanders and captains of the Navy, for whom a reduction is made under this section during any fiscal year of service-in-grade otherwise required under this paragraph may not exceed four percent of the authorized active-duty strength for that fiscal year for officers of that armed force in that grade. g. Notwithstanding subparagraph (E), during fiscal years 2013 through 2025, the total number of brigadier generals and major generals of the Army, Air Force, and Marine Corps, and the total number of rear admirals (lower half) and rear admirals of the Navy, for whom a reduction is made under this section during any fiscal year of service-in-grade otherwise required under this paragraph may not exceed 10 percent of the authorized active-duty strength for that fiscal year for officers of that armed force in those grades. f. A reserve or temporary officer who is notified that he will be released from active duty without his consent and thereafter requests retirement under section 7311, 8323, or 9311 of this title and is retired pursuant to that request is considered for purposes of this section, to have been retired involuntarily. An officer retired pursuant to section 1186(b)(1) of this title is considered for purposes of this section to have been retired voluntarily. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013879 9