ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 September 2019 DOCKET NUMBER: AR201860015741 APPLICANT REQUESTS: * promotion to Staff Sergeant (SSG)/E-6 * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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: * during his third deployment he was told he was going to the promotion board for SSG when he got back to the states * he then found out he was getting medically discharged * he was told he was not being sent to the promotion board because of his medical discharge * he was told he should have been retired as a SSG * he's trying to make sense of it all 3. The FSM's records contain: * DD Form 214 (Certificate of Release of Discharge from Active Duty) which shows he enlisted in the Regular Army on 10 July 2003 and was honorably retired for Disability, Temporary (Enhanced) on 10 March 2011. He was discharged in the grade of rank of Sergeant * Orders published by Headquarters III Corps and Fort Hood, dated 12 January 2011 reflect his effective date of retirement is 10 March 2011, his grade of rank as SGT and shows his disability rating at 60 percent * his Enlisted Record Brief shows his rank as SGT and his date of rank of 1 November 2007 * Physical Disability Information Report shows his rank as SGT, 60 percent disability and date of separation 21 March 2011, date placed on retired list 22 March 2011 under the authority of Title 10 USC 1372 and Title 10 USC 1202 4. The FSM's records are void of, and the applicant did not provide, proof that the FSM was recommended for promotion. 5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel. It states, for promotion to SSG, a Soldier must be recommended for promotion and the recommendation must be approved by the promotion authority. 6. Title 10 USC Code 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: (1) 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. 7. Title 10 U.S. Code 1202. Regulars and members on active duty for more than 30 days: temporary disability retired list states upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title. 8. Title 10 U.S., Code 1201. Regulars and members on active duty for more than 30 days: retirement states upon a determination by the Secretary concerned that a member described in subsection (c) is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). The disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either— (i) the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service); (ii) the disability is the proximate result of performing active duty; (iii) disability was incurred in line of duty in time of war or national emergency; or (iv) the disability was incurred in line of duty after September 14, 1978. 9. 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 and evidence in the records. The Board considered the applicant’s statement, his record of service and promotions, the absence of evidence to show he was considered, recommended and approved for promotion to SSG and the reason for his separation. The Board considered the policy for determining rank when individuals are retired for disability. Based on a preponderance of evidence, the Board determined that his rank on his orders and DD Form 214 were not in error or unjust. 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 the relief was not warranted. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 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. 2. 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. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel. Chapter 3, Semi-centralized Promotions (SGT and SSG) governs the promotion system for active Army and Reserve Soldiers. It states, the the Soldier will be recommended for promotion and the promotion authority will approve or disapprove the recommendation. 4. Title 10 USC Code 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: (1) 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. (2) 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. (3) 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. (4) 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. 5. Title 10 U.S. Code §?1202. Regulars and members on active duty for more than 30 days: temporary disability retired list states upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title. 6. Title 10 U.S., Code 1201. Regulars and members on active duty for more than 30 days: retirement states upon a determination by the Secretary concerned that a member described in subsection (c) is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). The disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either— (i) the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service); (ii) the disability is the proximate result of performing active duty; (iii) disability was incurred in line of duty in time of war or national emergency; or (iv) the disability was incurred in line of duty after September 14, 1978. //NOTHING FOLLOWS//