IN THE CASE OF: 
 
  BOARD DATE: 8 August 2023 
 
  DOCKET NUMBER: AR20220009123 
 
 
APPLICANT REQUESTS: 
 
• cancellation of his Survivor Benefit Plan (SBP)/Retired Serviceman's Family Protection Plan (RSFPP) premium debt 

• removal from the Temporary Disability Retired List (TDRL) 

• reinstatement of his rank/grade to sergeant first class (SFC)/E-7 

• amendment of his retirement status from disability to 20-year length-of-service 

• a personal appearance hearing before the Board 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) 

• U.S. Total Army Personnel Command (PERSCOM) Order Number 346-39, 11 December 2000 

• PERSCOM Order Number 204-7, 23 July 2001 

• DD Form 214 (Certificate of Release or Discharge from Active Duty) 

• County Circuit Court Final Decree of Divorce (first page only), date unknown 

• U.S. Army Physical Disability Agency (USAPDA) Memorandum (Non-Concurrence with the Majority Decision of the 4 November 2005 Formal Physical Evaluation Board (PEB) for (Applicant)), 4 November 2005 

• USAPDA Orders D-018-06, 18 January 2006 

• Department of Defense (DOD) Physical Disability Board of Review (PDBR) Memorandum (PDBR Recommendation on (Applicant)), 17 February 2016 

• Army Review Boards Agency (ARBA) Memorandum (DOD PDBR Recommendation for (Applicant), AR20160005523), 17 February 2016 

• ARBA Letter, 12 September 2016 

• USAPDA Order D279-33, 5 October 2016 

• Defense Finance and Accounting Service (DFAS)-Cleveland Form 1741/142 (SBP/RSFPP Premium Bill), 28 February 2022  


FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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: 
 
 a.  Regarding his DFAS SBP/RSFPP Premium Bill, he was removed from the Retired List for 7 years. He divorced in 2006. 
 
 b.  Regarding his removal from the TDRL, he had to pay medical expenses for his family during the 10 years following his removal from the TDRL and disability separation from the Army until his case was corrected to show his permanent disability retirement (2006 through 2016). All of his severance pay was recouped by the Department of Veterans Affairs (VA) in order for him to receive VA disability benefits. 
 
 c.  Regarding his reinstatement to the rank/grade of SFC/E-7, he held this rank for more than 6 months. He was not in a medical status while performing his duties. His command changed his medical status after he was promoted for 6 months. 
 
 d.  His change in retirement status from permanent disability retirement to a 20-year length-of-service retirement should be made because he was placed on the TDRL without being advised that he could have applied for continuation on active duty (COAD) as an active duty Soldier with over 16 years of service. 
 
 e.  He served in the Army for more than 16 years. While serving on active duty, he sustained multiple injuries and endured surgeries. Throughout the medical process, he was not properly advised. He lost his rank because of the error on the part of the Army, which was an embarrassment that he continues to cope with. 
 
 f.  He was removed from the TDRL for 10 years, which cost him thousands of dollars in medical care and expenses. He is currently receiving SBP/RSFPP Premium Bills from DFAS that were previously removed, adding an additional financial strain on his family. 
 
3.  His Total Army Personnel Database-Reserve records show: 
 
• Date of Rank to Staff Sergeant (SSG) – 1 December 1996 

• Primary Military Occupational Specialty (MOS) – 63B (Light Wheeled Vehicle Mechanic) 

• Date Last Physical – 29 July 1997 


• Physical Capacity, Upper Extremities, Lower Extremities, Hearing, Eyes, Psychiatric – ratings of "3" for Physical Capacity and Lower Extremities 

• Marital Status – Married 


 
4.  His DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period October 1997 through October 1998 shows in: 
 
• Part 1c (Rank) – SSG 

• Part 1d (Date of Rank) – 1 December 1996 

• Part 1e (Primary MOS Code) – 63B3O 

• Part IIIa (Principal Duty Title) – Medical Records File Clerk (note – he was not performing his primary MOS and did not perform in his primary MOS for the remainder of his service) 

• Part IIIb (Duty MOS) – 71G3O (Patient Administration Specialist) 

• Part IVc (Physical Fitness and Military Bearing) – 


 
• he did not complete an Army Physical Fitness Test (APFT) as he was assigned a temporary limiting physical profile rating in July 1997 (note – he did not perform an APFT for the remainder of his service) 


 
5.  His records contain no evidence showing he was awarded MOS 71G. 
 
6.  At the time of his reenlistment on 3 May 1999, he completed a DA Form 3286 (Statement for Enlistment), 3 May 1999, listing his wife and two daughters in Part IV (Dependency Statement). 
 
7.  His NCOER covering the period November 1998 through October 1999 shows in: 
 
• Part 1c (Rank) – SSG 

• Part 1d (Date of Rank) – 1 December 1996 

• Part 1e (Primary MOS Code) – 63B3O 

• Part IIIa (Principal Duty Title) – Medical Records NCO 

• Part IIIb (Duty MOS) – 71G3O 

• Part IVc (Physical Fitness and Military Bearing) – 


 
• he did not complete an APFT as he was assigned a temporary limiting physical profile rating in February 1999 

• his rater commented: "Profile does not hinder job performance" 


 
  
• Part V (Overall Performance and Potential) – 


 
• his rater marked "Among the Best" 

• his senior rater commented, in part: "promote with peers" 


 
8.  His Enlisted Record Brief (Active Army Enlisted), 30 March 2000, shows his marital status as "Married." 
 
9.  His NCOER covering the period November 1999 through October 2000 shows in: 
 
• Part 1c (Rank) – SSG 

• Part 1d (Date of Rank) – 1 December 1996 

• Part 1e (Primary MOS Code) – 63B3O 

• Part IIIa (Principal Duty Title) – Medical Records NCO 

• Part IIIb (Duty MOS) – 71G3O 

• Part IVc (Physical Fitness and Military Bearing) – 


 
• he did not complete an APFT as he was assigned a temporary limiting physical profile rating in August 2000 

• his rater commented: "Profile does not hinder job performance" 


 
• Part V (Overall Performance and Potential) – 


 
• his rater marked "Fully Capable" 

• his senior rater commented, in part: "select for ANCOC [Advanced Noncommissioned Officer Course] immediately" 


 
10.  PERSCOM Order Number 346-39, 11 December 2000, promoted him to the rank/grade of SFC/E-7 in MOS 63B4O with a date of rank of 1 January 2001. The Special Instructions state: 
 
SSG promoted to SFC who do not have ANCOC credit and MSG [master sergeants] promoted to SGM [sergeant major] who do not have USASMC [U.S. Army Sergeants Major Course] credit are promoted conditionally. Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the NCOES [Noncommissioned Officer Education System] requirement. 
 
11.  His NCOER covering the period November 2000 through March 2001 shows in: 
 
• Part 1c (Rank) – SFC 

• Part 1d (Date of Rank) – 1 January 2001 


• Part 1e (Primary MOS Code) – 63B4O 

• Part IIIa (Principal Duty Title) – Medical Records NCO 

• Part IIIb (Duty MOS) – 71G3O 

• Part IVc (Physical Fitness and Military Bearing) – 


 
• he did not complete an APFT as he was assigned a temporary limiting physical profile rating in August 2000 

• his rater commented: "Profile does not hinder job performance" 


 
• Part V (Overall Performance and Potential) – 


 
• his rater marked "Fully Capable" 

• his senior rater commented, in part: "send to ANCOC now" 


 
12.  U.S. Army Combined Arms Support Command and Fort Lee Permanent Orders 186-021, 5 July 2001, awarded him the Army Good Conduct Medal (5th Award) for exemplary behavior, efficiency, and fidelity in active federal military service for the period 16 May 1998 through 15 May 2001. His rank is shown as SFC. 
 
13.  PERSCOM Order Number 204-7, 23 July 2001, revoked Order Number 346-39, 11 December 2000, pertaining to his promotion to SFC/E-7, citing Army Regulation  600-8-19 (Enlisted Promotions and Reductions), paragraph 1-17 (Erroneous Promotions and De Facto Status) and paragraph 1-27 (NCOES Requirement for Promotion and Conditional Promotion). 
 
14.  His NCOER covering the period April 2001 through August 2001 shows in: 
 
• Part 1c (Rank) – SSG 


Part 1d (Date of Rank) – 1 December 1996 
• Part 1e (Primary MOS Code) – 63B3O 

• Part IIIa (Principal Duty Title) – Training NCO 

• Part IIIb (Duty MOS) – 91B3O (Medical Specialist) 

• Part IVc (Physical Fitness and Military Bearing) – 


 
• he did not complete an APFT as he was assigned a temporary limiting physical profile rating in April 2001 

• his rater commented: "Profile does not hinder job performance" 


 
• Part V (Overall Performance and Potential) – 


 
• his rater marked "Fully Capable" 

• his senior rater commented, in part: "promote with peers"  


15.  His records do not contain any DA Forms 3349 (Physical Profile Record) assigning him temporary or permanent limiting physical profile ratings. 
 
16.  His records do not contain medical evaluation board (MEB) and PEB documents for review. 
 
17.  U.S. Army Combined Arms Support Command and Fort Lee Orders 053-0171, 22 February 2002, released him from assignment and duty on 21 May 2002 because of physical disability incurred while entitled to basic pay and under conditions that permit his placement on the TDRL effective 22 May 2002 with a disability percentage of 30 percent. 
 
18.  His DD Form 2656 (Data for Payment of Retired Personnel), 4 March 2002, shows in: 
 
• item 14 (Marital Status) – Married 

• item 22 (Spouse) – he listed his spouse as T____ P____ with a marriage date of 4 November 1986 

• item 25 (Dependent Children) – he listed two daughters with birthdates in 1986 and 1988 

• item 26 (Beneficiary Category) – he elected SBP coverage for his spouse and children 


 
19.  The PERSCOM memorandum (Administrative Removal from the Promotion Selection List), 24 April 2002, notified him that he was considered and selected for promotion and ANCOC attendance; however, his name was administratively removed from the list under the provisions of Army Regulation 600-8-19, paragraph 1-10 (Non-promotable Status), based on the findings of the MEB. 
 
20.  His records contain no evidence showing he completed ANCOC or served in MOS 63B after September 1997. 
 
21.  His records contain no evidence indicating he requested COAD. 
 
22.  He retired on 21 May 2002. His DD Form 214 shows in: 
 
• item 4a (Grade, Rate, or Rank) – SSG 

• item 4b (Pay Grade) – E-6 

• item 11 (Primary Specialty) – 63B3O Light Wheeled Vehicle Mechanic, 15 years and 7 months 

• item 12c (Net Active Military Service This Period) – 16 years and 6 days 

• item 23 (Type of Separation) – Retirement 

• item 24 (Characterization of Service) – Honorable 


• item 25 (Separation (Authority) – Army Regulation 636-40 (Physical Evaluation for Retention, Retirement, or Separation), Paragraph 4-24b(2) (Placement on the TDRL) 

• item 28 (Narrative Reason for Separation) – Disability, Temporary 


 
23.  The County Circuit Court Final Decree of Divorce (first page only), date unknown, notes his marriage to T____ P____ on 4 November 1986 and two daughters with birthdates in 1986 and 1988. (Note: The complete divorce decree is not available for review to determine former spouse SBP coverage.) 
 
24.  The results of his formal PEB are not available for review. 
 
25.  The USAPDA memorandum (Non-Concurrence with the Majority Decision of the 4 November 2005 Formal PEB for (Applicant)) from the minority dissenter states he did not agree with the majority that the applicant's condition rated 10-percent disabling by the informal PEB was stable enough to change the rating to 0 percent. He recommended the applicant's continuance on the TDRL with a re-evaluation in November 2006. 
 
26.  His records do not contain evidence showing DFAS suspended his SBP/RSFPP debt during the period 21 May 2002 through 15 January 2006 or evidence indicating he requested debt forgiveness from DFAS. 
 
27.  USAPDA Orders D018-06, 18 January 2006, removed him from the TDRL and discharged him from the service because of permanent physical disability effective 16 January 2006. His disability percentage is shown as 20 percent. The Additional Instructions stated he was entitled to severance pay. 
 
28.  On 10 January 2014, he submitted a DD Form 294 (Application for a Review by the PDBR of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) requesting a review of the disability rating awarded to him. He stated that as an active duty Soldier with over 16 years of service, he was never advised by the medical board that he could have applied for COAD. The board rating was inconsistent with his medical conditions. Additionally, he was promoted to the rank/grade of SFC/E-7 while serving on active duty. He was demoted to the rank/grade of SSG/E-6 due to his medical conditions and was not properly advised. He requested reinstatement to the rank/grade of SFC/E-7. 
 
29.  The PDBR memorandum from the board president (PDBR Recommendation on (Applicant)), 17 February 2016, states the PDBR adjudicated the disability rating accompanying the applicant's medical separation. After carefully reviewing the application and his medical separation case file, the PDBR recommended correction of his records to reflect that he was placed on TDRL with a disability rating of 50 percent 
rather than 30 percent, and permanent disability retirement with a combined disability rating of 60 percent rather than 20 percent. 
 
30.  The ARBA memorandum from the Deputy Assistant Secretary of the Army (Review Boards (DASA (RB)) (Department of Defense PDBR Recommendation for (Applicant), AR20160005523), 17 February 2016, stated: 
 
 a.  The DASA (RB) approved the PDBR recommendation to place him on the TDRL with a disability rating of 50 percent rather than 30 percent for the period 21 May 2002 to 20 December 2005, then following this period, recharacterization of his separation as permanent disability retirement with a combined disability rating of 60 percent. 
 
 b.  The DASA (RB) directed correction of all Department of the Army records of the applicant by: 
 
  (1)  providing a correction to the applicant's separation document showing he was separated by reason of temporary disability effective the date of the original separation for disability with severance pay; 
 
  (2)  providing orders showing he retired by reason of permanent disability effective the day following the TDRL period; 
 
  (3)  adjusting his pay and allowances accordingly. Pay and allowances adjustment will account for recoupment of severance pay, provide 50-percent retired pay for the constructive temporary disability retired period effective the date of his original disability separation, and then payment of permanent disability retired pay at 60 percent effective the day following the constructive 6-month TDRL period; and 
 
  (4)  affording him the opportunity to elect SBP and medical TRICARE retiree options. 
 
31.  The ARBA letter, 12 September 2016, notified the applicant of the results of the PDBR. 
 
32.  USAPDA Order D279-33, 5 October 2016, removed him from the TDRL because of permanent physical disability and permanently retired him in his current rank of SSG. The order shows: 
 
• Date Placed on TDRL – 22 May 2002 

• Date Removed from TDRL – 18 January 2006 

• Percentage of Disability – 60 percent 


 
33.  His DD Form 2656 (Data for Payment of Retired Personnel), 8 November 2016, shows in: 
 
• item 14 (Marital Status) – Married 

• item 22 (Spouse) – he listed his spouse as R____ P____ with a marriage date of 28 June 2008 

• item 25 (Dependent Children) – no entry 

• item 26 (Beneficiary Category) – he elected not to participate in SBP 

• Section XII (SBP Spouse Concurrence) – his spouse's and notary public's signatures dated 8 November 2016 


 
34.  The DFAS-Cleveland Form 1741/142, 28 February 2022, shows his prior amount due for SBP premiums as $1,838.03. 
 
35.  The USAPDA memorandum from the legal advisor in response to the applicant's request to have his medical retirement changed to a 20-year length-of-service retirement and to have his rank corrected to SFC (Advisory Opinion – (Applicant)), 27 February 2023, states: 
 
 a.  The applicant's argument that he should have been given a "regular" retirement is speculative. He never achieved 20 years of active federal service. While he was not given (or informed about) the opportunity to apply for COAD, there is no guarantee he would have been approved. 
 
 c.  The applicant's argument that he should have been retired in the rank/grade of SFC/E-7 should be referred to the U.S. Army Human Resources Command (HRC) Enlisted Promotions Branch. His promotion to SFC/E-7 was administratively withdrawn and he was removed from the promotion list. Therefore, his Disability Evaluation System (DES) records accurately captured his rank at the time of his retirement. 
 
36.  The HRC memorandum from the Chief, HRC Enlisted Promotions Branch (ABCMR Advisory Opinion – (Applicant)), 7 March 2023, states: 
 
 a.  After a review of the applicant's request, HRC determined administrative relief is not warranted. 
 
 b.  He was administratively removed from the SFC Promotion List on 24 April 2002 based on the findings of his MEB, which recommended his placement on the TDRL on 22 May 2002. 
 
 c.  This process is in accordance with Army Regulation 600-8-19, 1 May 2002, paragraph 1-10, which states: "Soldier is undergoing medical evaluation proceeding to determine ability to perform in recommended MOS. Once a PEB determines that a 
Soldier is no longer qualified for continued active service, he/she will be removed from the promotion list." 
 
 d.  The applicant was never returned to active duty; therefore, his promotion was never reinstated. 
 
37.  The applicant was provided with copies of the advisory opinions on 20 March 2023 and given an opportunity to comment and/or submit a rebuttal. 
 
38.  In his letter, 29 March 2023, he respond to the advisory opinions, stating: 
 
 a.  He disagrees with the finding of the date of when his promotion to SFC/E-7 was revoked. According to his records, his rank was removed in April 2002; however, he was on terminal leave during that time. 
 
 b.  He was a motor sergeant with a military police company from 1996 through 1998. When his unit was inactivating, his commander sent him to the Army hospital for medical treatment. After his surgeries, he was placed in the medical records section as his duty assignment. He received several outstanding achievement awards for his performance. 
 
 c.  Once he learned he was on the recommended promotion list, he was told he had no medical codes to prevent him from being promoted. He was promoted by the commander of the Army hospital, who also advised him that there were no medical codes that would prevent him from receiving the promotion. However, when his section sergeant and lieutenant learned of his promotion, they went to the headquarters SGM to report that he should not be promoted because he should have been in a "medical hold" status. He was not in a "medical hold" status. His records were backdated and changed at the local level to add codes and remove his promotion. 
 
 d.  His SBP/RSFPP Premium Bill has not been addressed. Proper documentation was sent to the Army to have this debt removed. Although it was previously removed, he is now receiving letters stating the debt has been reinstated. He is also receiving letters for an individual with the same name with a suffix of Senior who lives in Alabama, his home state. The Army has mixed up his records with this individual's records in the past and he thinks this is the case with this debt. He would like this investigated. 
 
 e.  He has now learned about his disabilities and what the Promise to Address Comprehensive Toxics Act reveals about Operation Desert Storm veterans. He understands his disabilities better. If he had known that with 16 years of service, he could have applied for COAD, he absolutely would have. 
 
 f.  He requests consideration that he lost more than 7 years with no medical benefits for him and his family. He also requests cancellation of the SBP/RSFPP premium debt that was previously removed, as he receives no retired pay from the Army. (Note: He opted to receive VA compensation in lieu of retired pay from DFAS.) He further requests restoration of his rank to SFC and consideration for a 20-year length-of-service retirement with Concurrent Retirement and Disability Pay and he requests a personal appearance hearing via telephone to better explain his case. 
 
BOARD DISCUSSION: 
 
1.  The Board determined 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. 
 
2.  After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. 
 
 a.  TDRL: The evidence shows when the applicant was initially found unfit, he was retired on 21 May 2002 due to temporary disability and placed on the TDRL. His condition at the time had not sufficiently stabilized to permit an accurate assessment of a permanent degree of disability; thus, the TDRL disposition. Upon reexamination, he was still found unfit, but his condition had stabilized and was ready for final adjudication. The TDRL PEB recommended his removal from the TDRL and separation (since his disability rating was less than 30%) on 16 January 2006. In 2014, the DOD PDBR amended his disability rating percentage but did not change his disposition. His initial rating was increased from 30% to 50% but his disposition remained TDRL. His final rating was also increased from 20% to 60% and his disposition changed from separation with severance pay to permanent disability retirement. Based on the preponderance of evidence, the Board determined his TDRL disposition is not in error or unjust. 
 
 b.  SBP: The evidence shows when the applicant was placed on the TDRL in 2002, he was married and elected SBP coverage for spouse and children. Since he was separated (not retired) in 2006, SBP coverage and premiums would have stopped then. His divorce decree is not available. It is unknown when he was divorced and whether he was required to make a former spouse SBP election. Furthermore, when his disposition was changed by the PDBR from separation with severance pay to permanent disability retirement, the disposition change was retroactive to his date of separation in 2006. In the absence of his divorce decree, and y possible remarriage, the Board is unable to determine if his former spouse had a vested interest in the SBP. 
 
 c.  Grade: The evidence shows the applicant was administratively removed from the SFC promotion list on 24 April 2002 based on not completing NCO education requirements and the findings of his MEB, which recommended his placement on the TDRL on 22 May 2002. The Board agreed with HRC’s assessment that this process is in accordance with AR 600-8-19, in effect at the time, which states: "Soldier is undergoing medical evaluation proceeding to determine ability to perform in recommended MOS. Once a PEB determines that a Soldier is no longer qualified for continued active service, he/she will be removed from the promotion list. The applicant was never returned to active duty; therefore, his promotion was never reinstated. 
 
 d.  20-year length-of-service: The evidence shows the applicant completed 16 years of active federal service. He did not achieve 20 years of active federal service. Even if the Board accepted his contention that he was not given (or informed about) the opportunity to apply for COAD, there is no guarantee his request would have been approved.  
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  8/8/2023

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, 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 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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 may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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), 2 October 2000, prescribed the enlisted promotions and reductions function of the military personnel system. It provided the objectives of the Army's Enlisted Promotion System, which include filling authorized enlisted spaces with the best-qualified Soldiers. It also provided for career progression and rank that is in line with potential, recognizing the best qualified Soldier that will attract and retain the highest caliber Soldier for a career in the Army. Additionally, it precluded promoting the Soldier who is not productive or not best qualified, thus providing an equitable system for all Soldiers. 
 
 a.  Paragraph 1-10 (Nonpromotable Status) stated since PERSCOM administers promotion to grades SFC-SGM, commanders are responsible for notifying PERSCOM when Soldiers whose names appear on a recommended list are nonpromotable. Soldiers are nonpromotable to a higher grade when Soldiers are undergoing medical evaluation proceeding to determine ability to perform in recommended MOS. Once a PEB determines that a Soldier is no longer qualified for continued active service, he/she will be removed from the promotion list. 
 
 b.  Paragraph 1-17 (Erroneous Promotions and De Facto Status) stated instruments announcing erroneous promotions will be revoked. When a Soldier has been erroneously promoted and has received pay at the higher grade, a determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade. 
 
 c.  Paragraph 1-27 (NCOES Requirement for Promotion and Conditional Promotion) stated effective 1 October 1993 the Army linked NCOES to promotion to SSG, SFC, and SGM. Linking NCOES to promotion ensures NCOs possess the appropriate skills and knowledge required prior to assuming the duties and responsibilities for the next higher grade. 
 
  (1)  NCOES requirements for promotion stated a Soldier must be an ANCOC graduate for promotion to SFC. 
 
  (2)  Soldiers selected for promotion to SSG, SFC, and SGM but have not met the NCOES requirement will be promoted conditionally. Those Soldiers who fail to successfully complete or do not attend their scheduled NCOES will have their conditional promotions revoked and will be removed from the list. 
 
4.  Army Regulation 600-8-19, currently in effect, prescribes the enlisted promotions and reductions function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. 
 
 a.  Paragraph 1-21 (Promotion of Soldiers in the DES) states Soldiers in the DES process who are pending a medical fitness determination (referral to an MEB or PEB) remain otherwise eligible for promotion consideration, selection, and pin-on. The issuance of a permanent physical profile rating of "3" or "4" alone will not be used as the sole basis for determining primary MOS disqualification. 
 
 b.  Paragraph 1-21e states Soldiers on a promotion list who are retired for physical disability or who are placed on the TDRL at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted effective the day before placement on the Retired List or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be eligible for promotion (NCO Professional Development System (formerly known as NCOES) requirements are waived). 
 
5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 1 September 1990 and in effect at the time, established the Army Physical DES. It set 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 provided for disposition of the Soldier according to applicable laws and regulations. 
 
 a.  Paragraph 4-24b (Final Disposition) stated based upon the final disposition of USAPDA or Army Physical Disability Appeal Board, PERSCOM will issue retirement orders or other disposition instructions to include placement on the TDRL. 
 
 b.  Chapter 6 (Continuance of Disabled Personnel on Active Duty) prescribed procedures under which certain Soldiers of the Active Army (on the Active Duty List) who are eligible for retirement or separation because of physical disability may be COAD. COAD will be upon approval of their application for waiver. 
 
 c.  Paragraph 6-3 (Qualification for Continuance) stated to be considered for COAD under the provisions of this chapter, a Soldier must be: 
 
  (1)  found unfit by a PEB because of a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence; 
 
  (2)  capable of maintaining oneself in a normal military environment without adversely effecting one's health and the health of others, and without undue loss of time from duty for medical treatment; 
 
  (3)  physically capable of performing useful duty in an MOS for which he or she is currently qualified or potentially trainable; and 
 
  (4)  has 15 years but less than 20 years of total service or is qualified in a critical skill or shortage MOS confirmed by PERSCOM; or 
 
  (5)  disability is the result of combat. 
 
 c.  Paragraph 6-13e (Request for Extension of Continuation) stated a Soldier may request extension of COAD. The Soldier will forward an application to the approving authority 4 to 6 months before expiration of the period for which continuance was approved. 
 
6.  The National Defense Authorization Act for Fiscal Year 2004 provided for phased-in restoration of retired pay deducted from the accounts of military retirees because of their receipt of VA compensation. Concurrent Retirement and Disability Pay applies to all retirees with a VA-rated service-connected disability rating of 50 percent or higher, but does not apply to disability retirees with less than 20 years of service. The phased-in restoration began 1 January 2004. 
 
7.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving 
dependents. An election, once made, was irrevocable except in certain circumstances. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 
 
8.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 
 
9.  Department of Defense Financial Management Regulation 7000.14R, Volume 7B, chapter 4, section 040604, states a member whose record is corrected to a military disability retirement under the PDBR process and who was married on the retirement effective date will receive automatic full spouse coverage under the SBP unless the member makes an affirmative election for less than full spouse coverage within 90 days of being provided a DD Form 2656. Monthly SBP premiums for automatic or properly elected coverage must be charged from the effective retirement date. The spouse's concurrence on the DD Form 2656 must be signed on or after the date of the member's signature and otherwise conform to an election regarding spouse coverage. 
 
10.  Periodically Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or non-participation. The National Defense Authorization Act for Fiscal Year 2023 authorized an open enrollment season from 23 December 2022 through 1 January 2024. 
 
 a.  The SBP open season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently not enrolled in the SBP or Reserve Component SBP to enroll. For a member who enrolls during the SBP open season, the law generally requires that the member will be responsible to pay retroactive SBP premium costs that would have been paid if the member had enrolled at retirement (or enrolled at another earlier date, depending on the member's family circumstances). 
 
 b.  The SBP open season also allows eligible members and former members who are currently enrolled in either the SBP or Reserve Component SBP to permanently discontinue their SBP coverage. The law generally requires the covered beneficiaries to concur in writing with the election to discontinue. Previously paid premiums will not be refunded. 
 
//NOTHING FOLLOWS//