IN THE CASE OF: BOARD DATE: 17 March 2023 DOCKET NUMBER: AR20220005441 APPLICANT REQUESTS: through counsel: •correction of her record to reflect retirement in the rank/grade of colonel (COL)/O-6 •applicable back retirement pay as a result of her promotion •personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Supplemental Statement from Counsel •DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending5 September 2014 •Headquarters (HQs), U. S. Army Garrison Command, Fort Knox Orders Number220-0161 •Office of the Assistance Secretary Manpower and Reserve Affairs (ASAM&RA)Memorandum, Subject: Management of Reserve Component (RC) SoldiersRetained on Active Duty for Sanctuary •U.S. Army Human Resources Command (HRC) Orders Number A-04-013185 •HRC Orders Number A-11-032889 •HRC Orders Number A-11-032889A01 •HQs, First Army Permanent Orders Number 1A-11-145-014 •HRC Memorandum, Subject: Authorization to Attend Pre-Command Course (PCC) •HRC Orders Number M-01-100069 •E-mail from COL R-T- •HRC Memorandum, Subject: Travel Guidance for Defense Travel System (DTS)Authorization for Mobilization (MOB) Orders in DTS •DD Form 149, 23 September 2014 •Officer of the Inspector General letter •Declaration of the applicant •ARPC Form 249 (Chronological Statement of Retirement Points •Medical records •Non-Concurrence Disability Evaluation System (DES) rating packet •Fiscal Year (FY) 2014 COL Army Medical Department (AMEDD) PromotionSelection Board Results by Competitive Category •Physical Disability Information Report •DA Form 31 (Request and Authority for Leave) •Warrior Transition Battalion (WTB) Out-processing checklist •DA Form 67-9 (Officer Evaluation Report) ending 8 July 2011 •DA Form 67-9 ending 8 July 2010 •DA Form 67-9 ending 7 January 2009 •DA Form 67-9 ending 12 October 2009 •Commonwealth of Kentucky Expungement Order •Photographs FACTS: 1.The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states through counsel, she requests to be retired in the rank ofCOL/O-6, be paid retirement back pay, and a personal appearance before the Board.She was ordered to Active Duty for Operational Support (ADOS), and while she was onactive duty, she sustained an injury in the line of duty. Due to the injuries sustained, sherequired extensive medical treatment and was assigned to a Warrior Transition Unit.Prior to her medical retirement, she was considered for promotion on the Fiscal Year(FY) 2014 COL AMEDD promotion selection board on which she was selected forpromotion to COL/O-6; however, the results were not released until 9 September 2014after she was assigned to the USAR Control Group (Retired Reserve) on 5 September 2014. She requested a separation date of 30 September 2014 to give her about 30-days to transition from active duty, but was given a separation date of 21 August 2014, even though she was approved for 8 October 2014 by COL R-. If she would have been separated from active duty on the date which she was approved she would have been on the Reserve Active Status List (RASL) when the promotion results were released. She would have been promoted to the rank of COL in accordance with Title 10 United States Code (USC), section 1372 which states unless entitled to a higher retired grade under some other provision of law, any member of the armed forces who retires for physical disability under sections 1201 or 1204 of this title, or whose name is placed on a temporary disability retired list under sections 1202 or 1205 of this title, is entitled to 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 was retired and which was found to exist as a result of a physical examination. She would have been referred to the Army Grade Determination Review Board (AGDRB) in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, and Separation), paragraph 4-30 (b), which states Soldiers determined unfit who are not currently serving in the highest grade served will be referred by the U.S. Army Physical Disability Agency (USAPDA) to the AGDRB, unless the Soldier was entitled to a higher or equal grade by operation of Title 10, USC, sections 1212 and 1372. She was also advised that she was not entitled to the promotion because she was pending a Criminal Investigation Division (CID) investigation was without merit. The investigation was prompted by a traffic citation which she received for failing to update her vehicle registration while she was in the hospital. It was obvious that she would not have been able to update her registration from a hospital bed and the facts and circumstances surrounding the citation would have revealed such. She also submits that it was improper for CID to investigate her for such a matter and it was also improper to deny her promotion for this issue as well. She served over 18-years of honorable service and unfortunately, she was injured in the line of duty which resulted in her medical retirement due to no fault of her own and would have been promoted upon the release of the FY 14 COL AMEDD promotion selection results. If it had not been for the unforeseen injury, she would have continued to serve through her normal retirement eligibility date. 3.A review of the applicant's service record shows: a.On 20 May 1993, Orders Number A-05-003772, issued by the U. S. Total ArmyPersonnel Command (PERSCOM), the applicant was ordered to active duty, effective 13 June 1993 for obligated volunteer officer 4-years. b.On 15 December 1999, the applicant was honorably released from active dutyand assigned to the U. S. Army Reserve (USAR) Control Group (Reinforcement) in the rank/grade of captain (CPT)O-3. DD Form 214 shows the applicant completed 6-years, 6-months, and 3-days of active service. c.On 22 January 2001, the applicant completed her oath of office and wasappointed in the Army National Guard (ARNG) in the rank of CPT/O-3. d.On 17 July 2003, Special Orders Number 179 issued by the National GuardBureau (NGB), the applicant was transferred from the USAR, effective 22 January 2001, and was extended Federal Recognition in the ARNG. e.On 17 November 2004, Orders Number 322-2 issued by the NGB, the applicantwas ordered to Active Guard/Reserve (AGR) status, effective 15 November 2004. f.On 17 February 2008, the applicant was honorably released from active duty. DD Form 214 shows the applicant completed 3-years, 10-months, and 16-days of active service. g.On 6 March 2008, Orders Number 066-064, issued by the State of MichiganDepartment of Military and Veterans Affairs, the applicant was released from the ARNG and assigned to the USAR Control Group (Reinforcement), effective 29 February 2008. h.On 11 April 2008, Orders Number A-04-806758 issued by HRC, the applicantwas ordered to ADOS, effective 14 April 2008 for a period of 179-days. i.On 13 August 2008, Special Orders Number 210, issued by the NGB, theapplicant was transferred to the USAR and Federal Recognition withdrawn, effective 29 February 2008. j.On 4 September 2008, Orders Number A-09-817043, issued by HRC, theapplicant was ordered to ADOS, effective 10 October 2008 for a period of 90-days. k.On 31 December 2008, Orders Number A-12-827002, issued by HRC, theapplicant was ordered to ADOS, effective 8 January 2009 for a period of 365-days. l.On 15 September 2009, Orders Number B-09-906410, issued by HRC, theapplicant was promoted to the rank of lieutenant colonel (LTC)/O-5, effective on with a date of rank of 16 July 2009. m.On 7 December 2009, Orders Number A-12-932918, issued by HRC, theapplicant was ordered to ADOS, effective 8 January 2010 for a period of 365-days. n.On 14 April 2010, Orders Number A-12-932918A01, issued by HRC, amendedOrders Number A-12-932918 which changed the period of duty from 365-days to 158-days. o.On 30 April 2010, Orders Number A-04-013185, issued by HRC, the applicantwas ordered to ADOS, effective 15 June 2010 for a period of 207-days. p.On 30 November 2010, Orders Number A-11-032889, issued by HRC, theapplicant was ordered to ADOS, effective 8 January 2011 for a period of 96-days. q.On 31 January 2011, Orders Number M-01-100069, issued by HRC, theapplicant was ordered to active duty in support of Operation Enduring Freedom, effective 14 April 2011 for a period of 365-days. r.On 28 November 2011, Orders Number A-11-126347, issued by HRC, theapplicant was retained on active duty to participate in the Reserve component warriors in transition medical retention processing program for the completion of medical care and treatment, effective 28 November 2011 for a period of 90-days. s.On 13 December 2011, Orders Number A-11-126347A01, issued by HRC,amended Orders Number A-11-126347 to change the period of duty from 90-days to 155-days. t.On 15 December 2011, Orders Number A-11-126347A02, issued by HRCamended Orders Number A-11-126347 to change the period of duty from 155-days to 268-days. u.On 22 June 2012, Orders Number A-11-126347A03, issued by HRC amendedOrders Number A-11-126347 to change the period of duty from 268-days to 447-days. v.On 15 October 2012, Orders Number A-11-126347A05, issued by HRC amendedOrders Number A-11-126347 to change the period of duty from 447-days to 323-days. w.On 15 October 2012, Orders Number A-10-218818, issued by HRC the applicantwas retained on active duty to participate in the Reserve component warrior in transition medical retention processing program for the completion of medical care and treatment, effective 16 October 2012 for a period of 124-days. (1). On 7 December 2012, Orders Number A-10-218818A01, issued by HRC amended Orders Number A-10-218818 to change the period of duty from 124-days to 303-days. (2). On 22 May 2013, Orders Number A-10-218818A02, issued by HRC amended Orders Number A-10-218818 to change the period of duty from 303-days to 482-days. (3). On 26 November 2013, Orders Number A-10-218818A04, issued by HRC amended Orders Number A-10-218818 to change the period of duty from 482-days to 661-days. (4). On 31 July 2014, Orders Number A-10-218818A05, issued by HRC amended Orders Number A-10-218818 to change the period of duty from 661-days to 721-days. The additional instruction was amended to add Released from Active Duty(REFRAD) for retirement. (5). On 22 September 2014, Orders Number A-10-218818A06, issued by HRC amended Orders Number A-10-218818 to change the period of duty from 721-days to 690-days. The additional instruction was amended to change REFRAD retirement. Dateamended to 5 September 2014. x.On 18 July 2013, HRC notified the applicant of her eligibility for retired pay at age60 as she had completed the required years of qualifying Reserve service in accordance with Title 10 United States Code (USC), chapter 1223. y.On 8 August 2014, Orders Number 220-0161, issued by HQs, U. S. ArmyGarrison Command, Fort Knox, the applicant was to report to the Fort Knox Transition Center, effective 20 August 2014 with a scheduled date of separation of 25 August 2014. The applicant was placed on the retired list, effective 26 August 2014, under the provision of Title 10, USC, sections 1201 and 1372. With disability retirement for 17-years, 6-months, and 19-days of service. The applicant completed 18-years and 27-days of service under provision of Title 10 USC, section 1405. z.On 5 September 2014, the applicant was honorably retired from active duty forpermanent disability and assigned to the USAR Control Group (Retired Reserve). DD Form 214, item 4a (Grade, Rate or Rank) shows "LTC" and item 12i (Effective Date of Pay Grade) shows 16 July 2009. 4.The applicant provides: a.Office of the Assistant Secretary Manpower and Reserve Affairs memorandum dated 11 August 2008, Subject: Management of Reserve Component (RC) Soldiers Retained on Active Duty for Sanctuary which states Reserve Soldiers on active duty, except for training who have attained 18-years, but less than 20-years of active service may not be involuntarily released from active duty before the Soldier attains 20-years of active service unless the Secretary of the Army or his designee approves the release. b. HQs, First Army Permanent Orders 1A-11-145-014 which ordered USAR units(s) and their members to active duty in support of Continental (CONUS) Base Support (CBS) for a period of 365-days. The 7228th Medial Support Detachment was ordered to active duty with a personnel requirement of 35 Soldiers. c. HQs, U. S. Army HRC memorandum dated 23 May 2011, Subject: Authorization to Attend PCC, stated the applicant was authorized for temporary release from her current mobilization duties to attend the PCC during the period of 12 through 19 August 2011 in , . d.E-mail from COL R-T- dated 13 June 2011 which stated the recipients should betracking the selection board schedules. e.HRC memorandum dated 20 July 2011, Subject Travel Guidance for DTSAuthorization for MOB Orders in DTS, which provided the applicant with the instructions how to submit a travel authorization through DTS to travel to the PCC. f.DD Form 149 dated 23 September 2014 which the applicant applied to theABCMR to request the correction of her rank from LTC to COL because she did not receive notification of eligibility for promotion. g.Office of the IG letter dated 27 June 2018, which responded to the applicant'srequest for Freedom of Information Act (FOIA) for a copy of the IG case which she was the subject. Releasable documents were provided to the applicant. There was a partial denial of her request by the Initial Denial Authority (IDA) which she may appeal. h.Declaration of the applicant which stated she served over 18-years of honorableservice to include tours to Iraq, Bosnia, and Korea. In 2011, while she was running in a park where she was hit head on by a drunk driver and was pinned underneath the vehicle sustaining severe burns. Her injuries included: •third degree burns on her hip, buttocks, and groin area •second degree burns on her right posterior thigh •skin graft on her leg •fractures of her pelvis, ankle, shoulder bone, and nasal bone •sacral nerve injury •loss of dorsiflexion of her foot •severe leg laceration •concussion Her injuries resulted in 12 surgeries, 6-weeks on intensive care, and over 1-year of physical therapy. She was placed in a Warrior Transition Battalion (WTB) for medical treatment. The U.S. Army Physical Disability Agency (USAPDA) classified her a disabled veteran and determined that she would be medically retired. She had an approved separation date of 8 October 2014 when she was requesting about 30-days to prepare for transition from active duty. The B Company Commander inquired when she would like to retire, she responded in writing that she would like to retire 30 September 2014. At which time the company commander responded why would the Army keep her on orders for 30-days, it was an injustice to the taxpayer. He directed her to sign a counseling statement with a retirement date of 21 August 2014 because the command would not support her request for 30 September 2014. Her retirement date was adjusted to 25 August 2014 in order for her to complete mandatory comprehensive training and he did not receive her clearing paperwork until 15 August 2014. The applicant spoke with the personnel at the USAPDA who process medical retirements and she was informed the Army had authorized her retention on active duty until 8 October 2014. This retirement date would have provided her with the adequate time to clear the installation and schedule transportation, attend a retirement ceremony and receive her retirement award. The applicant was not aware that she was eligible for consideration for promotion let alone she was selected for promotion to COL. She was never notified by HRC nor her immediate chain of command. It was the responsibility of HRC to notify Soldiers who were in the WTB because as Reservist they do not have access to the HRC database which provide the military personnel messages and more importantly most of the Soldiers are on medication that might impede their ability to access the database. As a result of being a Reservist on medication in the WTB and not having access to the database for promotion, she was not informed of her eligibility and selection for promotion by her chain of command, she was unable to make an informed decision regarding her retirement date. Subsequently, she retired on 5 September 2014 and the FY 14 COL AMEDD promotion selection results were released on 9 September 2014. Because her retirement date was before the board results were released, she was unable to update her DD Form 214. i.ARPC Form 249 dated 27 September 2013 which shows the applicant had 20-years and 1-day of qualifying service for retirement. j.One page of a medical record. k.Office of Soldiers' Counsel National Capital Region memorandum dated 28 January 2014, Subject: Notice of LTC (the applicant) Non-concurrence with the Proposed Rating Decision dated 28 October 2013 and Request for Rating Reconsideration. The applicant disagreed with the proposed rating which assigned her migraines at a 30 percent disability rating. As under the Department of Veteran Affairs (VA) Code 8100 for migraines, the VA schedule for rating disabilities (VASRD) stated a rating of 50 percent would be assigned. The applicant suffered very frequent completely prostrating attacks which severely debilitated her ability to perform her vocation. l. FY 14 COL AMEDD Promotion Selection Board Results by Competitive Category that was released on 9 September 2014 shows under the non-Active Guard/Reserve (AGR) and Army National Guard (ARNG) Competitive Categories the applicant was selected for promotion in the Medical Service Corps. m. Physical Disability Information Report dated 8 July 2014 shows the applicant had a separation date of 6 October 2014 and to be placed on the retired list on 7 October 2014 and she had 18-years and 8-days of service. n. DA Form 31 dated 6 August 2014 shows the applicant had an approved leave during the period of 31 August through 5 September 2014. o. DA Form 67-9 for the period of 9 July 2010 through 8 July 2011 shows the applicant's rater rated her performance as outstanding and must promote. The rater commented her performance was commendable. She was to be considered for promotion and to groom her for positions of greater responsibility. Her senior rater rated her promotion potential as best qualified, center of mass, and to promote and select for Senior Service College. p. DA Form 67-9 for the period of 13 October 2009 through 8 July 2010 the applicant did not provide the second page of the document which shows the rating of her performance and promotion potential. q. DA Form 67-9 for the period of 16 January 2008 through 7 January 2009 shows the applicant's rater rated her performance as outstanding performance and must promote. The rater commented she was a valuable member of the team. She exhibits great potential and should be promoted with peers. Her senior rater rated her promotion potential as fully qualified, center of mass, and commented she should be considered for Senior Service College and to promote with peers. r. DA Form 67-9 for the period of 22 May 2009 through 12 October 2009 shows the applicant's rater rated her performance as outstanding and must promote. Her rater commented she had excellent potential and was ready to perform in positions of increased responsibility. Her senior rater rated her promotion potential as best qualified, center of mass, and commented she had exceptional performance and to select for Senior Service College and her assignments should take advantage of her potential for service at the next level. s. Commonwealth of Kentucky Expungement Order shows the applicant wasarrested on 10 July 2014 for speeding 21 miles per hour over the posted limit. The petition was filed no sooner than 5-years after the completion of her sentence. The offense was expunged from the court records and upon entry of the order, the proceedings in the case are deemed to have never occurred. t. of Expungement Order shows the applicant was arrested on 16 March 2012 for operating on the roadway with expired state registration, no operator's license, and failure to have license in possession. The petition was filed no sooner than 5-years after the completion of her sentence. The offense was expunged from the court records and upon entry of the order, the proceedings in the case are deemed to have never occurred. u.A Photograph of what appears to be an African American female in a hospitalbed with injuries and a photograph of what appears to be a car on the side of the roadway with a person standing next to it and several fire and emergency response vehicles. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered through counsel the applicant's record of service, documentssubmitted in support of the petition and executed a comprehensive and standard reviewbased on law, policy and regulation. Upon review through counsel of the applicant’spetition and available military records, the Board determined the applicant, and hercounsel did not demonstrate that the applicant’s separation was in error or unjust. TheBoard noted the applicant was not eligible in accordance with regulatory guidance.Furthermore, the Board found evidence in the record that shows an Army InspectorGeneral (DAIG) report noted several reasons the applicant was not eligible forpromotion not O-6/COL. The applicant’s name was removed from the scroll that wassent to the Senate for confirmation because of derogatory information from a CIDinvestigation. The Board agreed the applicant was medically retired on 5 September2014, prior to the promotion list being published on 9 September 2014. 2.During deliberation, the Board found the applicant contentions that she was rushedout of the military to be without merit. The Board found the applicant’s separation datewas in accordance with ALARACT 185/2007, subject: Transition leave processing foractive component and mobilized and reserve component (medical holdover). In addition,the Board recognized per Assistant Secretary of the Army(Manpower and Reserve Affairs) policy at the time, the maximum time in grade (TIG) forpromotion consideration to COL within the Reserve Component (RC), Army MedicalDepartment (AMEDD) Competitive Categories was extended from five to six years. TheBoard determined the six-year TIG for the applicant would have been summer of 2015,she would not have been promoted to COL in September 2014. The Board found, basedon the preponderance of evidence the applicant not her counsel provided sufficientevidence that merits correction of her record to reflect retirement in therank/grade of colonel (COL)/O-6 nor entitlement of back retirement pay as a result of herpromotion. Therefore, the Board denied relief. 3.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 equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case. 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. REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so. 2.Army Regulation (AR) 135-155 (Army National Guard and U. S. Army ReservePromotion of Commissioned Officers and Warrant Officers Other Than GeneralOfficers), prescribes policy and procedures used for selecting and promotingcommissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR). a. Paragraph 2–6 (Inactive and active status), an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list. Removal will not be considered a non-selection. If returned to an active status, the officer's name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board. An officer returned to an active status after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion until at least 1-year after the date of return to an active status. b. Paragraph 3-18a (4), If an officer is determined to be ineligible for consideration for a reason listed below CDR, HRC, Office of Promotions (RC) (AHRC-MSL) will verify the officer's ineligibility, explain the basis for the officer's ineligibility to the SA, and advise the SA to request that the President approve removal or administrative deletion of the officer's name from the promotion board report or the promotion list. A promotion advisory board is not required for a determination that an officer was ineligible for consideration for reasons listed below. An officer is ineligible if he or she:\ • was removed from an active status before promotion was finalized • was not in an active status or was in an active status in error at the time of consideration • was not participating satisfactorily in Reserve training • had not completed the minimum military educational requirements before the selection board convened • had not completed the minimum civilian educational requirements before the selection board convened • was not in the zone of consideration • was appointed to or from assignment to a special branch (AMEDD, CH, or JAGC) before effective date of promotion c. Paragraph 4–20 (Selection and transfer to the Retired Reserve), a Reserve officer (other than a commissioned warrant officer), on transfer to the Retired Reserve, will be transferred in the highest grade in which he or she served satisfactorily, as determined by the Secretary of the Army per 10 USC 1370. 3. Title 10, United States Code (USC) 1370 (Regular commissioned officers), (a) (Retirement in Highest Grade in Which Served Satisfactorily), (1) Unless entitled to a different retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) who retires under any provision of law other than chapter 61 or 1223 of this title shall be retired in the highest permanent grade in which such officer is determined to have served on active duty satisfactorily. (2) (Determination of satisfactory service), the determination of satisfactory service of an officer in a grade under paragraph (1) shall be made as follows: (A) by the Secretary of the military department concerned, if the officer is serving in a grade at or below the grade of major general, rear admiral in the Navy, or the equivalent grade in the Space Force. (B) By the Secretary of Defense, if the officer is serving or has served in a grade above the grade of major general, rear admiral in the Navy, or the equivalent grade in the Space Force. (3) (Effect of misconduct in lower grade in determination), if the Secretary of a military department or the Secretary of Defense, as applicable, determines that an officer committed misconduct in a lower grade than the retirement grade otherwise provided for the officer by this section; (A) such Secretary may deem the officer to have not served satisfactorily in any grade equal to or higher than such lower grade for purposes of determining the retirement grade of the officer under this section; and (B) the grade next lower to such lower grade shall be the retired grade of the officer under this section. 4. Title 10, USC, section 1372 (Grade on retirement for physical disability: members of armed forces), 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: 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. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Paragraph 4-30 (Grade on retirement or separation for physical disability), the grade at which a Soldier is retired or receives disability severance pay will be the highest of the options listed below in accordance with the provisions of 10 USC 1212 and 10 USC 1372, respectively, and as implemented by AR 15–80 for determinations of highest grade satisfactorily held. • (current grade) No time-in-grade is required • (highest grade satisfactorily held) Soldiers determined unfit who are not currently serving in the highest grade served will be referred to the Army Grade Determination Review Board, unless the Soldier is entitled to a higher or the Soldier upon being advised of his entitlement to a review fails to submit matters • (grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit) this pertains to Soldiers on a promotion list, for Active Army and RC officers, upon USAPDA confirming that the officer meets the requirements below: • the officer is on an approved (and confirmed, if required) promotion list prior to the effective date of transfer to the retired list or have received Senate confirmation, if recommended for promotion to colonel or higher, prior to the effective date of transfer to the retired list • the officer must not be serving under a suspension of favorable personnel action on the effective date of transfer 6. AR 15-80 (Army Grade Determination Review Board and Grade Determinations), establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA). Paragraph 4-3 (Physical disability cases) officers being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the officer is entitled to a higher or equal grade by operation of law (title 10 USC 1212 and 1372). The AGDRB cannot waive the statutory time in grade requirements for officer positions; however, these provisions are waived by operation of law in some automatic grade determinations for physical disability separations or retirements. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 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//