IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20220000950 APPLICANT REQUESTS: correction of his records to show he was promoted to the rank/grade of staff sergeant (SSG)/E-6. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 1059 (Service School Academic Evaluation Report), dated 21 May 2004 * SF 600 (Chronological Record of Medial Care), dated 19 January 2005 * Memorandum, Subject: Physical Condition of [applicant], dated 12 October 2005 * DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), periods covered April 2004 to March 2005 and April 2005 to November 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 9 February 2006 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: a. He would like his records corrected to reflect the rank/grade of SSG. He was selected to go to the E-6 board while he was overseas. He returned home right after that and upon returning to his unit he was interrogated by police officers from his home state of. They accused him of being an active gang member because he was corresponding with his brother who is in prison. He was told to take off his shirt so they could see all his tattoos which are old. He has never been in trouble with the military, and he is not a gang member. Of course, after this his unit leaders were questioning what happened. Nothing came of the interrogation, but he feels if it was not for that situation he would have been promoted. b. Besides dealing with injuries he had before deployment and he was facing being medically discharged at one point he heard they were going to chapter him out with no evidence to go on. He worked with a special operations unit, so his clearance was revoked. Prior to this, his DA Form 2166–8 said he displayed a high degree of honesty loyalty and integrity. It also stated promoted ahead of peers and send to the Basic Noncommissioned Officer Course (BNCOC) immediately. If it was not for his physical disability and other circumstances he would have been promoted. When he asked about it, they said it does not matter because he was getting out. It did and does matter, he should have been given severance pay for the rank he was promotable to and should have been discharged as a SSG instead of sergeant (SGT)/E-5, so it did matter. It has bothered him for all these years to be unjustly accused after all the hard work and dedication he put into this. He asks the Board to make this right and promote him to the rank/pay grade of SSG/E-6. c. He has always felt after all these years that he should have been promoted to SSG. If it had not been for his physical disability and circumstances, he feels like his unit would have promoted him and maybe even fought to keep him in with the injuries he had. He deployed with those injuries and while being deployed, he was reinjured. The circumstances were out of his control. He should have been given pay for the rank he was promotable to. He feels because of everything he stated he was unjustly treated and not promoted because of those reasons. 3. A review of the applicant's official records show: a. On 22 November 2000, the applicant enlisted in the Regular Army. b. Orders Number 78-422 issued by Headquarters, 3d Infantry Division (Mechanized) and Fort Stewart promoted the applicant to the rank of SGT, effective on with a date of rank of 1 April 2004. c. On 13 May 2005, a DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant immediately reenlisted for a period 6 years. d. On 9 December 2005, a DD Form 199 (Informal Physical Evaluation Board (PEB)) rated the applicant's various conditions as bilateral shoulder and elbow pain rated at 10-percent disabling and chronic back pain due to thoracic degenerative disc disease without neurological abnormality rated at 10-percent disabling. The applicant concurred and waived a formal hearing. The PEB recommended the applicant be separated with severance pay of otherwise qualified. e. On 9 February 2006, the applicant was honorably discharged from active duty by reason of disability, severance pay. He completed 5 years, 2 months, and 18 days of net active service. DD Form 214 shows in item 4a (Grade, Rate, or Rank) SGT, and item 12h (Effective Date of Pay Grade) shows 1 April 2004. Item 18 (Remarks) shows disability severance pay $25,266.00. f. The applicant's record is void of documentation showing 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. g. On 28 July 2010, Orders Number 209-0003, issued by Headquarters, Fort Stewart and Hunter Army Airfield shows the applicant was placed on the permanent disability retirement list on 10 February 2006, in the retired rank/pay grade of SGT/E-5. 4. The applicant provides: a. DA Form 1059 showing he attended and completed the Primary Leadership Development Course and achieved course standards during the period of 21 April to 21 May 2004. b. SF 600 that shows he was seen and treated for arthritis and right elbow pain. c. A memorandum, stating in part, he was physically incapable of reasonably performing his duties as a Helicopter Repairer, due to his injuries and medical conditions. d. DA Forms 2166-8 that state, in pertinent part, promote ahead of peers; promote with peers; send to BNCOC immediately; and send to BNCOC when allocations are available. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The applicant’s record is void evidence that shows he was promotable to SSG with promotion points and reached a promotion cutoff core. His record is also void evidence that shows he was promotable when separated for a disability that placed him on the PDRL. The Board determined there is insufficient evidence to grant relief. 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 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 (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: a. 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. b. Per the provisions of Title 10, USC, section 1212, a Soldier on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. The Soldier will be promoted to the designated grade effective the Soldier's separation date. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000950 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1