IN THE CASE OF: BOARD DATE: 2 July 2020 DOCKET NUMBER: AR20200000669 APPLICANT REQUESTS: in effect, applicable back pay and allowances for his promotion to the rank/grade of sergeant first class (SFC)/E-7, effective 14 July 2014. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored memo * Combat Related Special Compensation (CRSC) adjudication, dated 17 December 2014 * DD Form 2656 (Data for Payment of Retired Personnel), dated 6 June 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 July 2014 * DD Form 215 (Correction to DD Form 214), dated 1 July 2014 * DA Form 3349 (Physical Profile), dated 9 January 2013 * Promotion portal webpage * DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings), dated 24 March 2014 * Veterans Affairs (VA) and Brevard County, FL, letters * Excerpt Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) 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 in pertinent part, his DD Form 214, dated 14 July 2014, was generated after his original DD Form 214 after his Medical Evaluation Board (MEB) discharge. The CRSC letter, dated 17 December 2014, page two also directs the Defense Finance and Accounting Service (DFAS) to change his rank/promotion. The correction was missed by the time the Inspector General stepped in to enforce AR 600-8-19 (Enlisted Promotions and Reductions) and AR 635-40. 3. A review of the applicant’s official records show the following: a. on 13 July 2001, the applicant enlisted in the Army National Guard (ARNG) and served continuously until his PEB. b. On 24 June 2014, Orders Number 175-1197 issued by the Joint Forces Headquarters, California ARNG, promoted the applicant to the rank of SFC under the provisions of AR 600-8-19, effective on 14 July 2014. c. On 14 July 2014, the applicant was honorably retired from the ARNG by reason of permanent disability. He completed 8 years and 6 days of net active service, with 1 year, 8 months, and 23 days of prior active service, and 3 years, 3 months, and 3 days of prior inactive service. * item 4a (Grade, Rate or Rank) shows the rank/grade of staff sergeant (SSG)/E-6 * item 12i (Effective Date of Pay Grade) shows 6 October 2008 d. On 14 July 2014, DD Form 215 was completed to correct the following items on the applicant’s DD Form 214 ending on 14 July 2014. * item 4a; SFC * item 4b (Pay Grade) E-7 * item 12i; 14 July 2014 * item 18 (Remarks) retired list grade SFC 4. The applicant provides: a. CRSC adjudication with emphasis on page two showing special note to DFAS to please note the Service members rank promotion. b. DD Form 2656 showing the applicant’s rank as SSG. c. DA Form 3349 showing the applicant was issued a permanent profile and needed an MEB. d. Promotions portal webpage showing the applicant was in position number one on the SFC promotion list for Fiscal Year 2014. e. DA Form 199-1 showing the applicant’s disposition as permanent disability retirement. f. VA letter and Brevard County letters showing the applicant was permanent and totally disabled. g. Excerpt from AR 635-40 with emphasis on grade on retirement or separation for physical disability. 5. AR 600-8-19, paragraph 1-20 (Promotion of Soldiers pending referral to a PEB) in effect at the time states Soldiers who are pending referral to a PEB under AR 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. Per the provisions of Title 10 USC, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. 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, the rank on his PEB proceedings, his subsequent promotion orders to SFC (effective the date of his separation from active duty), his DD Form 214 (signed 20140606) and a DD Form 215 (signed 20140701) correcting his rank, pay grade and retired list grade effective the date of his retirement and the CRSC adjudication. The Board found insufficient evidence to show the applicant was not receiving retired pay at the correct rank/grade (SFC/E7) and the applicant provided none. Based on a preponderance of evidence, the Board determined that the applicant’s retired rank as reflected on his orders and a DD Form 215 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 :XXX :XXX :XXX 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. AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20 (Promotion of Soldiers pending referral to a PEB) in effect at the time states Soldiers who are pending referral to a PEB under AR 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. Per the provisions of Title 10 USC, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000669 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1