IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220008293 APPLICANT REQUESTS: in effect – * retroactive promotion to the rank/grade of captain (CPT)/O-3 with applicable back pay and allowances * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * Applicant's self-written statement * Excerpt Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), 13 July 2004 * Excerpt AR 600-8-29 (Officer Promotions), 9 September 2020 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. He is a medically retired first lieutenant (1LT)/O-2 and requests review of his records for consideration for retroactive promotion to CPT/O-3, as an Ordnance Branch Officer. If approved, relief in the form of all pay and benefits commensurate to CPT is requested retroactive effective date of rank/promotion. Additionally, correction of all pertinent records and retirement orders is requested to reflect the promotion. b. He was medically retired on 28 November 2016 as a 1LT/O-2. He served in the North Carolina Army National Guard (NCARNG) between 20 February 2002 – 28 November 2016. He commissioned by Officer Candidate School (OCS) graduation on 20 August 2005 as a second lieutenant (2LT)/O-1. He became qualified as an Ordnance (OD) Branch Officer after successful completion of Ordnance Officer Basic Course (OD - OBC/BOLCIII) with a graduation date of 7 November 2008. He was promoted on 7 November 2008 to 1LT as a fully qualified OD Branch Officer. Time-in- Grade (TIG) at date of retirement was 96 months and 21 days. He was told that there were no CPT vacancies in the NCARNG for OD Officers in 2012. A CPT Explosive Ordnance Disposal (EOD) Officer position became available, and he volunteered to attend the school. He was injured, no fault of his own, while attending EOD school in 2014 and subsequently referred to Physical Evaluation Board/Medical Evaluation Board and retired 28 November 2016 without promotion. It is not known to him why he was not promoted to the rank of CPT on or about 7 November 2013 when he had reached the maximum 5 years TIG. c. His 31 December 2013 Officer Evaluation Report (OER) reflects outstanding performance, must promote, and fully qualified, promote (Rater/Senior Rater). He was informed that he would be promoted on EOD school graduation. After injury he became unable to graduate EOD school at no fault of his own. He can find no evidence of being on a non-promotion list. d. It was only recently that he became aware that he had an avenue for recourse through the Army Review Boards Agency process. AR 600-8-29, chapter 3, section II, paragraph 3-6j states - "Officers having a valid permanent or temporary medical profile that, as determined by appropriate medical personnel, precludes administration of the Army Physical Fitness Test (APFT), even in an authorized modified form, are deemed to have failed to take the APFT through no fault of their own and will not be placed into a non-promotable status because of it." Reference: https://arba.army.pentagon.mil/agdrb-overview.html; Which States: Disability Separations and Retirements, a Soldier separating for a physical disability receives severance or retired pay based on the highest of (1) the pay grade at time of separation, (2) the highest grade satisfactorily served, or (3) the grade to which the Soldier had been approved for promotion. If the Soldier is not serving in his or her highest grade or on an approved promotion list to what would have been the highest grade, the Physical Disability Agency forwards the disability case to the Army Grade Determination Review Board (AGDRB) for a determination of whether the Soldier served satisfactorily at a higher grade. He was Retired as a 1LT, a grade lower than the grade of CPT/O-3 which he had been approved for promotion. e. He received outstanding academic marks until eight months after his injury when he could no longer continue with the program due to the pain and physical limitations that resulted from the injury in the Line of Duty (LOD) in February 2014. He subsequently became unable to meet the stated requirement for promotion due to no fault of his own. From the date of LOD injury, released from active duty on 7 December 2014, and until his medical retirement on 28 November 2016, he was told he could not be moved to any vacancy nor otherwise promoted. He did not understand this at the time. However, he felt obligated to accept the word of his senior officer, the battalion S-1. He did not realize that an administrative error or injustice had occurred until many years later. f. To the best of his knowledge, he was placed on a promotion list for CPT prior to retirement. In conclusion, he requests consideration for promotion to CPT based on applicable regulatory guidance, laws, and statutes. 3. A review of the applicant's military records show the following: a. Having had prior enlisted service in the Army National Guard (ARNG), National Guard Bureau (NGB) Form 337 (Oaths of Office) shows he executed an oath of office and was appointed as a 2LT in the NCARNG on 20 August 2005. b. On 10 February 2009 – (1) The NGB notified the applicant by memorandum that he was promoted to 1LT effective on with a date of rank of 7 November 2008 in the Reserve of the Army for service in the ARNG. (2) The NGB published Special Orders Number 31 AR extending Federal recognition and promoting the applicant to 1LT, effective 7 November 2008. c. On 16 October 2011, DA Form 705 (APFT Scorecard) shows the applicant passed his height/weight and APFT; and DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) shows his case was closed favorably and the FLAG removed. d. On 21 March 2013, Headquarters, NCARNG published Orders Number 080-887, transferring the applicant from Assistant Operations Officer to EOD Officer, Headquarters and Headquarters Company (HHC), 130th Maneuver Enhancement Brigade (MEB), Charlotte, NC, effective 15 March 2013. The orders show he was filling a vacancy and was not qualified. e. DA Form 1059 (Service School Academic Evaluation Report) dated 18 November 2014, shows the applicant failed to achieve course standards while attending the Basic Explosive Ordnance Disposal Course, for training in area of concentration 89E (EOD Officer), Ordnance Branch. Due to medical reason he failed to meet APFT standards and was on profile for a three-month period. This would have caused him to not be able to meet Training and Doctrine Command Regulation 350-6 APFT graduation requirement. The DA Form 1059 shows he failed an APFT on 4 March 2014. f. On 7 December 2014, the applicant was released from active duty. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 15 February 2014 and completed 9 months and 23 days net active service this period. Item 4a (Grade, Rate or Rank) shows 1LT, and item 12i (Effective Date of Pay Grade) shows 7 November 2008. g. On 16 December 2014, Headquarters, NCARNG published Orders Number 350- 869, transferring the applicant from EOD Officer, HHC, 130th MEB, Charlotte, NC to Maintenance Control Officer, A Company, 505th Engineer Battalion, Gastonia, NC, effective 1 March 2015. The orders show he was filling a vacancy and was qualified. h. DA Form 5500 (Body Fat Content Worksheet (Male)) dated 12 April 2015 shows the applicant was in compliance with Army standards. i. On 15 July 2016, DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows the applicant was found physically unfit and the PEB recommended his disposition be separated with severance pay. j. On 26 October 2016, the Army Physical Disability Agency published Orders Number D 300-14, retiring the applicant for permanent physical disability in the retired grade of rank of 1LT/O-2 and place him on the retired list, effective 28 November 2016. The order shows, in pertinent part: * Component: ARNG (Army National Guard) * Authority: AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) * Statute authorizing retirement: 1204 k. On 28 November 2016, the applicant was honorably separated from the ARNG and transferred to the Retired Reserve. NGB Form 22 (Report of Separation and Record of Service) shows in item 5a (Rank) 1LT and item 6 (Date of Rank) 7 November 2008. l. On 13 February 2017, the NGB published Special Orders Number 34 transferring the applicant to the Retired Reserve and withdrawing his federal recognition. 4. The applicant provides excerpts of ARs 135-155 and 600-8-29 providing the promotion criteria. 5. On 9 February 2023, the Joint Force Headquarters, NCARNG, Deputy G-1 provided an advisory opinion to NGB for this case and states: a. Officer Evaluation Report and Academic Evaluation Report summary. (1) 20110701-20111231: Rater: Satisfactory performance. The applicant could be a fine officer if he would better manage his physical fitness and if the number of outside interference (personal issues) would dissipate. He has good potential for promotion, promote with peers. Senior Rater (SR): Below Center of Mass-Retain. Promote to Captain based on successful completion of his next duty assignment. (2) 20120101-20121231: Rater: Outstanding performance. Promote as soon as possible. SR: Center of Mass: Promote with peers. (3) 20130101-20131231: Rater: Outstanding Performance; should be considered for promotion. SR: Center of Mass: No comment on promotion. (4) Assigned to the 130th MEB EOD position starting 15 March 2013, non- qualified. (5) 20140303-20141118 (Academic Evaluation Report (AER)): EOD Qualification Course. Failed to Achieve Course Standards. Due to medical reasons was on 3-month profile and failed to pass APFT. (6) 20140101-20150831: Rater: Capable. SR: Qualified. Struggles with following through with clearing up his medical issues. (7) 20150901-20160331: Rater: Capable. SR: Qualified. No comment on promotion Referred. Failed Height/Weight. On profile for APFT and pending Medical Evaluation Board. (8) The applicant was Department of the Army (DA) Selected for promotion to CPT on the Fiscal Year (FY) 2013 Mandatory Promotion Board conducted by Headquarters, DA (HQDA). b. Regulatory guidance provides a provision for the promotion of officers upon the occasion of a medical retirement when the officer has been selected for promotion on a DA Mandatory Promotion Board. c. It is common, in the North Carolina Army National Guard to experience a delay in promotion due to the lack of a valid vacancy. It is also common to have a promotion delayed due to organizational needs as compared to the performance of the individual officer. We are unable to verify if a position was available at the time the applicant was selected for a promotion to CPT by the DA Select Mandatory Promotion Board. A slight delay in available positions is common. In this case the applicant was assigned to the EOD position in the 130th MEB on 15 March 2013. Three months prior to the publication of the DA Select board results. As a result, he was nonqualified for promotion until completion of a formal military school. He then failed the EOD qualifying course and subsequently failed an APFT. This placed him in a non-promotable state, and he was either in a non-promotable status or non-favorable evaluation status from this point until his retirement. d. Promotion of officers is the sole purview of the separate states in accordance with Article 1 Section 8 of the Constitution of the United States that reads as follows: To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; the applicant was entitled to be medically retired in the grade of CPT/O-3 in accordance with AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) paragraph 4-30c. e. Based on the available information, the NCARNG did not promote the applicant to CPT and does not desire to promote him retroactively. The NCARNG supports and recommends the promotion of the applicant to CPT on the date of his medical retirement in accordance with applicable Army Regulations. Promotions to the next higher grade when medically retired and DA Selected for promotion are accomplished as of the first day on the retirement list, and beyond the purview of the NCARNG. 6. On 17 March 2023, the NGB, Chief, Special Actions Branch, provided an advisory opinion for this case and recommended partial approval. The advisory official states: a. The applicant was medically retired in 2016 after serving in the NCARNG from 2002. The applicant requests retroactive promotion to the rank of CPT with an effective date of 7 November 2013 and payment of all entitlements commensurate of CPT rank from date of promotion to date of retirement. b. The applicant enlisted in the NCARNG in 2002 and commissioned in 2005 as an Ordnance Branch Officer and completed BOLC in 2008. He was then promoted to 1LT on 7 November 2008. The applicant was DA Selected for promotion to CPT on the FY 2013 Mandatory Promotion Board conducted by HQDA. At the time, there were no CPT vacancies in the NCARNG for Ordnance officers, and the applicant elected to attend EOD school when an EOD CPT position became vacant. The applicant was assigned to the EOD position in the 130th MEB on 15 March 2013, three months prior to the publication of the DA Select board results. As a result of this assignment, he was nonqualified for promotion until completion of a formal military school. He suffered an injury during his Professional Military Education and failed the EOD qualifying course. He then subsequently failed an APFT and height/weight (HT/WT). This placed him in a non-promotable status, and he was either in a non-promotable status or non-favorable evaluation status from this point until his retirement on 28 November 2016. c. According to AR 635-40 Paragraph 4-30, 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 Title 10, USC, section 1212 and Title 10, USC, section 1372, respectively, and as implemented by AR 15–80 (Army Grade Determination Review Board) for determinations of highest grade satisfactorily held. Paragraph 4-30c outlines the 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 provision pertains to Soldiers on a promotion list. d. Based on the applicant's claims and the documents he provided in support of his request, the applicant was entitled to be medically retired in the grade of O-3 in accordance with AR 635-40 paragraph 4-30c. He was DA selected for promotion to CPT on the FY 2013 Mandatory Promotion Board and was waiting for a O-3 position to become available. It is not uncommon for an officer to experience a delay in promotion due to the lack of a valid vacancy. However, he was placed on a non-promotable status because he was unable to complete EOD school and failed an APFT as well as HT/WT. e. For these reasons, it is the recommendation of this office that the applicant's request be partially approved. Based on the applicant's records, he was on a promotion list before his injury and subsequent medical retirement. According to the regulation, the applicant met the criteria to retire as a CPT based on the guidelines for which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. However, this does not mean that the applicant qualifies for a retroactive promotion. According to the circumstances at the time of his DA selection for promotion to CPT, the NCARNG did not have Ordnance CPT vacancies except for an EOD position, which the applicant did not meet the criteria for promotion until completion of EOD school. He never met the condition to be promoted to that vacant position and was in an unfavorable status after failing an APFT and HT/WT. Therefore, it is the recommendation that the applicant be granted medical retirement as a CPT, effective the date of his medical retirement, and not retroactively on the date of his DA selection. This would not qualify the applicant to any entitlements as a CPT before his medical retirement date of 28 November 2016. f. The Army National Guard Officer Policy Branch, and the NCARNG concurs with this recommendation. 7. On 3 April 2023, the applicant through his counsel responded to the NGB advisory opinion and states, in pertinent part: a. The NGB, NCARNG, and the applicant agree on one point that, the applicant should have been promoted to CPT. The parties views diverge on the question of the effective date of his promotion. The NGB and NCARNG recommend 28 November 2016, the date of his medical retirement. The applicant contends that he was eligible to promote earlier because he reached five years' TIG as an O-2 on 7 November 2013. He was passing his APFT as of the close out date his Officer Evaluation Report on 31 December 2013. b. Law, policy, and equity weigh in favor of granting the applicant's requested relief of retroactive promotion to 7 November 2013. He first became eligible for promotion consideration to O-3 on 7 November 2010 when he reached two years' TIG. On 3 January 2012, the applicant transferred from his O-2 position at the 626th Maintenance Company to the O-3 S4 billet in the 105th Military Police Battalion. He was an Ordnance Branch Officer with a little more than four years' TIG as an O-2. At the time he took the S4 job, he met the minimum qualifications for promotion to captain. As an S4, he was a first lieutenant doing captain's work. c. The applicant's promotion to CPT/O-3 should have happened three years prior to his medical retirement. Under Title 10, USC, Section 14303, first lieutenants require a minimum TIG of two years. He would have hit his maximum TIG of five years in November 2013. When the applicant hit his TIG ceiling, he occupied a billet commensurate with the higher rank. He had completed Basic Officer Leadership Course (BOLC) on 7 November 2008 and qualified as an Ordnance Officer. Finally, he also satisfied the requirements for promotion in AR 135-55, paragraph 3-1c. The applicant was: (1) On the Reserve Active Status List (RASL). (2) In the zone of consideration for promotion. (3) Medically qualified. (4) Had a security clearance. (5) Met standards of the Army Body Composition Program. (6) Regularly participated with his unit. d. The applicant completed Phase I of the EOD course at Fort Lee, Virginia. He had high academic marks that placed him near the top of the class. He met APFT and body composition standards. As Phase 1 wrapped up, he suffered an injury sometime between January and February from wearing the 70-pound EOD bomb suit while performing required actions during a simulated war exercise. He would move on to Phase 2 of training at Eglin Air Force Base, FL, but his injury progressed to the point he could no longer meet physical standards required of Soldiers. After going through the Disability Evaluation System, he received a physical disability retirement in 2016 at rank of 1LT/O-2 with over eight years TIG. e. The NGB's advisory opinion makes other questionable claims. The opinion asserts that the applicant was ineligible for promotion, in part, because he did not complete EOD training. As explained above, though, he had completed Ordnance BOLC. He was qualified in a military occupational specialty. The NGB asserts that the applicant needed to complete Phase 1 and 2 of EOD school to be promoted but provides no written authority that this was the case in 2013 or 2014. f. The NGB's position is that the applicant's injury put him in a non-promotable status. Again, the agency gives no authority for this argument. Yet, the NGB concedes he should have retired as a CPT. If he was eligible to pin on CPT at medical retirement, he was also eligible on 7 November 2013. g. The NCARNG advisory opinion says that it does not desire to promote the applicant retroactively to 2013. This position is unfortunate and untenable. The applicant was qualified and eligible for promotion to CPT on 7 November 2013. He should have arrived at EOD school as a CPT because he met all requirements for promotion. After his injury, he remained eligible for promotion, but the NCARNG failed to take the necessary steps. h. The applicant was eligible for promotion before his medical retirement on 28 November 2016. The advisory opinions throw up barriers to an earlier promotion date that collapse under the weight of law, policy, and equity. The Board should correct the error and injustice in his military records, promote the applicant to CPT effective 7 November 2013, and award him back pay and entitlements commensurate with new rank. 8. Counsel's brief with the Power of Attorney in its entirety can be reviewed within the supporting documents. Additionally, the Officer Record Brief, dated 18 October 2015, which shows the applicant's personal, personnel, training, and assignment data can also be reviewed in the supporting documents. 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 military record, the Board found that relief partially warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The Board reviewed and agreed with the advisory officials finding the applicant was on a promotion list before his injury and subsequent medical retirement. According to the regulation, he met the criteria to retire as a CPT based on the guidelines for which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. However, this does not mean that the applicant qualifies for a retroactive promotion. At the time of his DA selection for promotion to CPT, the NCARNG did not have Ordnance CPT vacancies except for an EOD position, which the applicant did not meet the criteria for promotion until completion of EOD school. He never met the condition to be promoted to that vacant position and was in a non-promotable status after failing an APFT and height/weight. Thus, the Board determined he should be granted medical retirement in the rank of CPT, effective the date of his medical retirement, and not retroactively on the date of his DA selection. 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 amending Orders Number D 300-14, issued by the U.S. Army Physical Disability Agency on 26 October 2016 to show permanent physical disability retirement in the retired grade of rank of CPT/O-3 and placement on the retired list, effective 28 November 2016, in that grade. 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 any relief in excess of that described above. 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 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. Paragraph 2–11 states that 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. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), dated 13 July 2004, prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the U.S. Army Reserve. Table 2-1 (Time in grade requirements commissioned officer, other than commissioned warrant officers) provides that, the minimum years in lower grade for 1LT to CPT is 2-years, and the maximum years in lower grade is 5-years. 4. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of military human resources support operations. Paragraph 3-6j (Non-promotable status) states, an officer is in a non-promotable when the officer is noncompliant with the Army Body Composition Program as defined in AR 600–9, failed the Army Physical Fitness Test (APFT) most recently administered, or through the officer's own fault (as determined by the first commander who is senior to the officer concerned) has not taken and passed an APFT within the period required by AR 350–1. Officers having a valid permanent or temporary medical profile that, as determined by appropriate medical personnel, precludes administration of the APFT, even in an authorized modified form, are deemed to have failed to take the APFT through no fault of their own and will not be placed into a non-promotable status because of it. 5. 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 Temporary Disability Retired List (TDRL) under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: * 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) AR20220008293 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1