ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20180014931 APPLICANT REQUESTS: * promotion to Sergeant Major (SGM)/ E-9 effective the date of his retirement * in effect, retirement pay adjustment * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Physical Disability Information Report * Retirement Orders * Results of 2015 SGM Board * 2015 SGM List * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 1 September 2015 FACTS: 1. The applicant states: * he was separated from the Army National Guard (ARNG) Army Guard Reserve (AGR) program for a medical disability * there were no negative actions against him at the time of separation * there were no suspension of favorable personnel actions in his file * he was fully qualified in a promotion status at separation date * in accordance with Army Regulation 600-8-19 he was eligible to be promoted at retirement to the rank of SGM * he included a copy of the promotion list, his permanent disability retirement orders, and his temporary disability retirement orders for the Board's consideration 2. The applicant provides the following documents for the Board's consideration: * a Physical Disability Information Report which shows his retired grade at SGM * Orders 187-039 published by State of Connecticut Military Department, dated 6 July 2015 honorably retiring him as a Master Sergeant (MSG) for Medical, Physical or Mental Condition effective 1 September 2015 * Orders 173-045 published by State of Connecticut Military Department, dated 22 June 2015 showing the applicant retired in the rank of MSG and was placed on the retired list on 2 September 2015 * memorandum from Department of the Army, Joint Force Headquarters, dated 21 January 2015 stating the results of the 2015 SGM Board were attached * an order of merit list of those to be promoted to SGM showing the applicant was number two for the Military Occupational Specialty 92Z * a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 September 2015 showing the applicant retired as a MSG 3. The applicant's service records contain a DA Form 2173 (Statement of Medical Examination and Duty Status) for an injury for cervical spinal stenosis, lumbosacral disc degeneration in his back, and cervical disc degeneration in his neck from an injury incurred in the line of duty in 2012. 4. The applicant was selected for promotion on the 2015 SGM promotion and his name appears on the best qualified list as the second individual to be promoted for the Military Occupational Specialty of 92Z. The promotion list was published by the Department of the Army Joint Force Headquarters on 21 January 2015. 5. The applicant was released from assignment because of physical disability incurred while entitled to basic pay. He was placed on the Temporary Disability List and the retired list on 2 September 2015 with a 50 percent disability. The statute authorizing his retirement was Title 10 U.S. Code Section 1372. 6. Title 10 U.S. Code Section 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 or whose name is placed on the temporary disability retired list, is entitled to 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 or 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. 7. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board (MMRB), referral to a medical evaluation board (MEB), or physical evaluation board (PEB) will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and applicable law and policy pertaining to retired grades for individuals retired due to permanent disability. The Board considered the applicant’s statement, his record of service, his name on a promotion list and the date of that list, his retirement orders and his retirement from active duty as a result of permanent disability. The Board found no evidence that would have otherwise precluded the applicant from promotion had he remained in an active status. Based on a preponderance of evidence, the Board determined that the applicant’s retired rank should be corrected. 2. 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. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: - amending State of Connecticut Military Department Orders 187-039 dated 6 July 2015 to reflect his Rank upon the date of his transfer to the Retired Reserve as SGM/E9; - Amend his rank as SGM/E9 for the purposes of retired pay effective the date of his retirement, and; - pay him any money due from the date of his retirement as a result of this correction. 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 600-8-19 (Enlisted Promotions and Reductions) states, Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board (MMRB), referral to a medical evaluation board (MEB), or physical evaluation board (PEB) will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. 2. Title 10 U.S. Code Section 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 or whose name is placed on the temporary disability retired list, 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. 3. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014931 3