IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220004387 APPLICANT REQUESTS: in effect – * correction of her records to show she was promoted to the rank/grade of staff sergeant (SSG)/E-6 due to her placement on the Temporary Disability Retired List (TDRL) * all backpay and entitlements APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20 (Promotion of Soldiers in the Disability Evaluation System (DES)) extract, 25 April 2017 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 14 November 2017 * Orders Number 341-0005, 7 December 2017 * Headquarters Department of the Army (HQDA) Monthly SSG Promotion Selection By-Name List, 22 February 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 4 March 2018 * Enlisted Record Brief (ERB), 5 March 2018 * U.S. Army Physical Disability Agency (USAPDA) Memorandum, Subject: Contact Information, 1 April 2020 * DA Form 199, 9 June 2020 * Orders Number D176-10, 24 June 2020 * Applicant's email to the U.S. Army Human Resources Command (HRC), 18 July 2019 and 5 May 2022 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She is requesting a correction in rank due to being listed on the HQDA monthly SSG promotion by-name list selected for 1 March 2018 as of 22 February 2018. b. A supervisor working in the Military Personnel Division (MPD) on Fort Eustis, VA told her that she was not eligible because she needed to reenlist to receive the promotion. She informed her Physical Evaluation Board Liaison Officer (PEBLO) of her promotion and her PEBLO told her that her medical board case was now closed so she could not assist her in adjusting her retirement orders. She submitted a promotions/rank request to the HRC sometime around April 2019 and three months later her request was returned without action and recommended that she submit to the ABCMR for review. She is late with her submission due to ongoing mental health issues as well as losing her father to cancer. Life has been extremely challenging, and she needed more time to take care of herself and family. Therefore, she is requesting approval for rank correction due to the promotion list. c. This correction should be made because it was an injustice from the MPD in Fort Eustis, especially since the supervisor was unreasonable and gave her incorrect information. Per AR 600-8-19, chapter 1, paragraph 1-20, Soldiers on a promotion list who are retired for physical disability or who are placed on the TDRL at the time of retirement for a 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. She was otherwise eligible for promotion ("I was not flagged, I met Non-commissioned Officer Education System (NCOES) requirements"). Before her effective retirement date of 5 March 2018, she tried to have her orders corrected when she discovered she made the promotion list for SSG in February 2018 with an effective date of 1 March 2018. She tried again in April 2019. 3. A review of the applicant's official military records show the following: a. On 1 March 2007, she enlisted in the Regular Army. b. Orders Number 152-001 published by Headquarters, 2nd Battalion, 1st Advise and Assist Brigade, 1st Cavalry Division, promoted the applicant to sergeant (SGT)/E-5, effective on with a date of rank of 1 June 2011. c. On 14 November 2017, a DA Form 199 (PEB Proceedings) shows an Informal PEB found the applicant physically unfit and recommended she be placed on the TDRL with a re-examination during the month of April 2018. d. Orders Number 341-0005 issued by the U.S. Army Support Activity, Joint Base Langley-Eustis, Fort Eustis, VA, retired the applicant, effective 4 March 2018, and placed her on the TDRL in the rank of SGT, effective 5 March 2018. The Orders show: * Statute authorizing retirement: 1202 (Title 10, USC, section 1202) * Other eligible laws: 1372 (Title 10, USC, section 1372) * Retirement type and allotment code: TEMP DISABILITY/6 e. On 4 March 2018, she was retired by reason of "disability, temporary (enhanced)." DD Form 214 shows she completed 11 years and 4 days of net active service. Item 4a (Grade, Rate or Rank) shows SGT, item 4b (Pay Grade) shows E-5, and item 12i (Effective Date of Pay Grade) shows 1 June 2011. f. On 20 August 2019, the U.S. Army Human Resources Command wrote to the applicant in response to her request for a DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty. After review of her request and supporting documents, the requested correction cannot be processed. That her rank listed on the DD Form 214 is correct as issued. g. On 9 June 2020, DA Form 199 shows an informal TDRL PEB recommended her permanent retirement by reason of disability with a combined rating of 70 percent. She concurred with the recommendation. h. Orders Number D176-10 issued by the U.S. Army Physical Disability Agency (USAPDA), Arlington, Virginia, removed the applicant from the TDRL on 24 June 2020 because of permanent physical disability and permanently retired her in the rank/grade of SGT/E-5. The Orders show: * Percentage of disability: 70 percent * Retirement type and allotment code: Permanent/10 * Statute authorizing retirement: 1201 (Title 10, USC, section 1201) 4. The applicant provides: a. An extract from AR 600-8-19, paragraph 1-20 (Promotion of Soldiers in the DES) dated 25 April 2017 that states, while in the DES, Soldiers are not required to meet prescribed service remaining requirements for promotion as provided for in this regulation. Per the provisions of Title 10 USC, Section 1372, Soldiers on a promotion list who are retired for physical disability (Title 10, USC, section 1201 or 1204) or who are placed on the TDRL (Title 10, USC, sections 1202 or 1205) 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. b. HQDA Monthly SSG Promotion Selection By-Name List selected for 1 March 2018 promotion as of 22 February 2018, showing her name on the list. This list states the following Soldiers should contact their Battalion S1 or Military Personnel Division to determine if they are fully qualified for promotion on 1 March 2018. c. ERB dated 5 March 2018, showing the applicant's personnel and personal data. The ERB does not show she was in a promotable status. d. USAPDA memorandum dated 1 April 2020, requesting the applicant's address to forward her retirement certificate and orders. e. Emails from the applicant to HRC dated 18 July 2019 and 5 May 2022, requesting promotion to SSG and correction of her DD Form 214 to show her rank/grade as SSG/E-6. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The applicant served in the Regular Army from 1 March 2007 to 4 March 2018 when she was retired and placed on the TDRL in the rank/grade of SGT/E-5 the next day. According to the HQDA Monthly SSG Promotion Selection By-Name List selected for 1 March 2018 promotion as of 22 February 2018, her name is listed on that list, indicating she was in a promotable status. b. Based on law and regulation, any member of an armed force who is retired for physical disability under section 1201 or 1204 of Title 10, USC, is entitled to the grade equivalent to the permanent regular or Reserve grade to which they would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination. Further, regulation states promotion to the next higher rank will be effective one day prior to placement on the permanent disability retired list. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * amending Orders Number 341-0005 issued by the U.S. Army Support Activity, Joint Base Langley-Eustis, Fort Eustis, VA on 7 December 2017 to show her retired rank as staff sergeant (SSG) * amending her DD Form 214 ending on 4 March 2018 to show in Blocks 4a and 4b SSG/E-6 vice SGT/E-5 and in item 12(i) 4 March 2018 vice 1 June 2011 * amending Orders Number D176-10 issued by the U.S. Army Physical Disability Agency (USAPDA), Arlington, VA on 27 June 2020 to show (on the standard name line) her rank as SSG vice SGT * paying her any back retired pay as a result of this correction 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), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 1, paragraph 1-20 (Promotion of Soldiers in the DES) states, in pertinent part, while in the DES, Soldiers are not required to meet prescribed service remaining requirements for promotion as provided for in this regulation. Per the provisions of Title 10 USC Section 1372, Soldiers on a promotion list who are retired for physical disability (Title 10, USC, sections 1201 or 1204) or who are placed on the TDRL (Title10, USC, sections 1202 or 1205) 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 in accordance with paragraph 1–11 (the NCOES requirements in paragraph 1–28 are waived). Forward a copy of Regular Army promotion/retirement orders 10 days prior to the effective date of promotion to the HRC email address, for inclusion into the total Army personnel data base (TAPDB). 3. Title 10, USC, section 1372 states 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 TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to highest of: * 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 * 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 * 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 * 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004387 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1