IN THE CASE OF: BOARD DATE: 14 September 2022 DOCKET NUMBER: AR20220002997 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 30 April 2003 to show his rank/pay grade as staff sergeant (SSG)/E-6. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Staff Sergeant (SSG) (Retired) R_ U_, dated 13 September 2021 * Letter from Master Sergeant (MSG) (Retired) J_ T_, dated 25 October 2021 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 attended the E-6 promotion board and was discharged before he was given his promotion orders. He was on chemotherapy and was not able to process what was going on and he did not know that he could even file a grievance to have it corrected until a couple of months ago. 3. A review of the applicant's official records show the following: a. On 15 April 1999, the applicant enlisted in the Regular Army. b. On 20 May 2001, he reenlisted for a period of 6 years. c. On 13 March 2001, Headquarters, 3rd Infantry Division (Mechanized) and Fort Stewart, GA, issued Orders Number 72-82 promoting the applicant to the rank/pay grade of sergeant (SGT)/E-5, effective on with a date of rank of 9 March 2001. d. On 18 March 2003, Headquarters, Fort Stewart and Hunter Army Airfield issued Orders Number 077-0008 that show, in pertinent part: * Effective Date of Retirement: 30 April 2003 * Date Placed on Retired List: 1 May 2003 * Retired Grade of Rank: SGT * Percentage of Disability: 50 * Retirement Type and Allotment Code: "Temporary Disability/6" e. On 30 April 2003, the applicant was retired. DD Form 214 shows he was retired under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of "disability, temporary." He completed 4 years and 16 days of net active service. Item 4a (Grade, Rate, or Rank) shows SGT, and item 12h (Effective Date of Pay Grade) shows 9 March 2001. f. The applicant's record is void of documentation that shows he was on a promotion list or held a promotable status to the rank/grade of SSG/E-6. Additionally, his records do not contain orders promoting him to the rank of SSG. 4. The applicant provides: a. A letter from SSG (Retired) R_ U_ stating, in pertinent part, the applicant had the time in service and time in rank to go to the promotion board. The day of the board the applicant was recommended for promotion to the rank of SSG. The applicant's promotion documents were misplaced. b. A letter from MSG (Retired) J_ T_ stating, in pertinent part, the promotion board was held in Kosovo in 2001. He attended the promotion board with the applicant and the applicant was recommended for promotion to SSG. The applicant's promotion documents were misplaced. 5. On 10 August 2022, the U.S. Army Human Resources Command, Chief, Enlisted Promotions Branch, provided an advisory opinion for this case and stated: a. After review of the applicant's application for correction of military records, it has been determined that his request for correction of military records should be disapproved. b. The records available to the Junior Enlisted Promotion section indicates that the applicant was not in a promotable status prior to separation from the Army. They researched promotable reports from April 2000 to April 2003; there is no indication that the applicant was promotable. The applicant is not entitled to a promotion in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20, Promotion of Soldiers in the Disability Evaluation System. 6. On 19 August 2022, the applicant was provided a copy of the advisory opinion for comments, rebuttal, or extension. As of 12 September 2022, he did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulations. Upon review of the applicant s petition, available military records and the U.S. Army Human Resources Command, Chief, Enlisted Promotions Branch advisory opinion, the Board concurred with the advising official finding the applicant was not in a promotable status prior to separation from the Army. Per regulatory guidance, the applicant was not entitled to a promotion. However, the Board determined the applicant's service record did not reflect he was awarded the Army Good Conduct Medal (1st award) and his record shows he received "excellent" conduct and efficiency ratings throughout his service for the period of 15 April 1999 to 30 April 2003. Based on this the Board determined partial relief was warranted for correction of the applicant s record to show award of the Army Good Conduct Medal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Army Good Conduct Medal (1st award) for exemplary service from 15 April 1999 to 30 April 2003 and adding the medal to his DD Form 214 for the period ending 30 April 2003. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to show the applicant s rank/pay grade as staff sergeant (SSG)/E-6. 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): N/A 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 15 185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. In pertinent part, it states, per the provisions of Title 10, USC, section 1372, a Soldier on a promotion list at the time of retirement for disability will be retired at the promotion list grade. 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) AR20220002997 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1