ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20190002681 APPLICANT REQUESTS: Placement on the Retired List in the rank/grade of sergeant (SGT)/E-5 vice specialist (SPC)/E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number D237-03, dated 24 August 2004 * Orders Number 265-008, dated 21 September 2004 * Orders Number 275-001, dated 1 October 2004 * Enlisted Record Brief (ERB), dated 12 October 2004 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 November 2004 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 was in a promotable status and was supposed to be separated as a SGT and not a SPC. He was processed under medical retirement after a medical board. His ERB shows promotion points and his DD Form 214 shows successful completion of the Primary Leadership Development Course (PLDC). 3. A review of the applicant’s service records show the following on: * 8 September 2000 – the applicant enlisted in the Regular Army * 16 August 2004 – a Physical Evaluation Board (PEB) convened and found the applicant physically unfit and recommended a combined rating of 40% and his disposition be placement on the Temporary Disability Retired List (TDRL) * 24 August 2004 – Orders Number D237-03, issued by the U.S. Army Physical Disability Agency released the applicant from active duty and placed him on the TDRL in the rank of SPC effective 25 November 2004 * 12 October 2004 – the applicant’s ERB shows he had 460 promotion points effective November 2002 in Military Occupational Specialty (MOS) 42L (Administrative Specialist) and section 6 (Military Education) shows he was a PLDC graduate * 24 November 2004 – the applicant was honorably retired from active duty by reason of disability, temporary, DD Form 214, item 4a (Grade, Rate or Rank) shows SPC 4. The applicant provides: * Orders Number 265-008, issued by U.S. Army Europe, Kitzingen Transition Center showing the applicant was given a retirement/separation date of 24 November 2004 * Orders Number 275-001, issued by U.S. Army Europe, Kitzingen Transition Center showing Orders Number 265-008 was amended insomuch as authorizing early return from overseas for his dependents 5. On 19 June 2019, the U.S. Army Human Resources Command reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Department of the Army Promotions opined that, the applicant was not eligible for a promotion under the Disability Evaluation System. The provisions under Title 10 USC, section 1372, grade on retirement for physical disability: members of Armed Forces was in effect on 4 January 1995. In accordance with (IAW) Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), dated 10 January 2006, paragraph 1-19, Soldiers pending referral to or action by an MOS/medical retention board, Medical Evaluation Board (MEB), or PEB was not in effect until after the applicant was separated from the Army. The applicant had promotion points on his ERB, however, IAW AR 600-8-19, dated 20 January 2004, paragraph 3-28 b (16), he should have been removed from the promotion recommendation list when an MEB determined that he was no longer fit for duty. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant was provided with a copy of the advisory to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 7. Title 10 USC, section 1372, 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 TDRL 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 or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. b. The highest temporary grade or rank in which he or she served satisfactorily, as determined by the Secretary of the Armed Force from which he or she is retired. c. 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. 8. AR 600-8-19 in effect at the time states in: a. Paragraph 1-10, Soldiers are non-promotable to a higher grade when the Soldier is undergoing medical evaluation proceedings to determine ability to perform in recommended MOS. b. Paragraph 3-28, Soldiers will be removed from the recommended promotion list when a medical board has determined the Soldier is no longer fit for duty. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, an advisory opinion and evidence in the records. The Board considered the applicant’s statement, his service record, his record of promotions and the reason for his separation. The Board found that the advising official determined that the applicant was not eligible for promotion and while he had promotion points in his record, was removed from consideration in accordance with the policy in effect at the time. Based on a preponderance of the evidence, the Board determined that the grade the applicant held at the time of retirement was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that 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. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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, 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 TDRL 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 or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. b. The highest temporary grade or rank in which he or she served satisfactorily, as determined by the Secretary of the Armed Force from which he or she is retired. c. 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. 3. AR 600-8-19 (Enlisted Promotions and Reductions) in effect at the time states in: a. Paragraph 1-10, Soldiers are nonpromotable to a higher grade when the Soldier is undergoing medical evaluation proceedings to determine ability to perform in recommended MOS. b. Paragraph 3-28, Soldiers will be removed from the recommended promotion list when a medical board has determined the Soldier is no longer fit for duty. ABCMR Record of Proceedings (cont) AR20190002681 0 3 1