IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20230000535 APPLICANT REQUESTS: correction of his service record to reflect he was promoted to the rank/grade of sergeant first class (SFC)/E-7 upon his medical retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Joint Service Commendation Medal * 99th Regional Support Command August 2012 SFC Senior Enlisted Promotion Board (SEPB) Results * E-mail regarding SEPB results * Memorandum to September 2013 SEPB * Headquarters (HQs), Regional Command (South) Memorandum dated 21 March 2014, Subject: General Officer Memorandum of Reprimand (GOMOR) * HQs, Regional Command (South) Memorandum dated 11 April 2014, Subject: GOMOR * U.S. Army Human Resources Command (HRC) Memorandum, Subject: Notification of Eligibility for Retired Pay at Non-regular Retirement (20-year Letter) * Request for Standby Advisory Board (STAB) consideration for Staff Sergeant (SSG) (the applicant) * E-mail from Master Sergeant (MSG) -, 17 March 2015 * E-mail from MSG -, 31 March 2015 * Biography 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 in effect, he was recommended for promotion to the rank of SFC on the September 2012 SFC SEPB which he received a congratulatory e-mail regarding his selection for promotion from Colonel (COL) . However, he was not promoted from the results of the board. His unit deployed to Afghanistan in July 2013 and prior to the deployment the unit submitted several promotion packets to include his. Between October and November 2013, his Command Sergeant Major (CSM) received an e-mail from the promotion board which indicated his age was a factor which affected his promotion consideration. His CSM replied to the e-mail which caused the board to apologize but requested another promotion packet to be submitted. His CSM explained the original promotion packet was good for 2-years and two promotion packet had already been submitted. The CSM has the e-mail traffic. Shortly after this communication occurred, he was injured in Khandar, Afghanistan and was medically evacuated to Germany and then on to Walter Reed Warrior Transition Brigade. His injury required a total hip replacement and spinal fusion that required a lengthy recovery period. While he was at Walter Reed Medical Center he was assisted by Master Sergeant (MSG) and MSG to find out the result of the SEPB. In March 2015, the MSGs assisted him in generating a new promotion packet since the original packet was over 2-years old. To his knowledge there was e-mail communication from the MSGs to his unit which were never acknowledged. He believes his unit did not respond to the inquiries regarding his promotion packet due to prior incidents that occurred while he was the unit Equal Opportunity (EO) Noncommissioned Officer (NCO) He requests the Board to consider all his documentation and to promote him to the rank of SFC. 3. A review of the applicant's service record shows: a. The applicant's service record is void of his initial enlistment contract; however, DD Form 214 (Report of Separation from Active Duty) shows the applicant enlisted in the U. S. Army Reserve (USAR) on or about 25 February 1978. He was ordered to active duty for training on 10 March 1978. He was honorably released from active duty on 18 June 1978. DD Form 214 shows the applicant completed 3-months and 9-days of active service. b. On 17 December 1991, Orders Number 183-4, issued by HQs, First U.S. Army and Fort George G. Meade, the applicant was discharged from the USAR with a General Under Honorable Conditions discharge. c. On 11 May 2006, Orders Number 06-131-00013, issued by HQs, U.S. Army Reserve Command (USARC), HQs, First U.S. Army and Fort George G. Meade Orders Number 183-4 was revoked as directed by the Army Review Boards Agency Docket Number AR20050005923. d. On 15 May 2006, Orders Number 06-135-00006, issued by HQs, USARC the applicant was honorably discharged from the USAR, effective 17 December 1991 as directed by the Army Review Boards Agency Docket Number AR20050005923. e. The applicant enlisted in the USAR on 13 March 2007 in the rank/grade of specialist (SPC)/E-4. f. On 26 March 2007, Orders Number 07-085-00020, issued by HQs, U.S. Army Reserve Medical Command (ARMEDCOM), the applicant was reassigned to the 354h Transportation Command, effective 25 April 2007, in the rank of SPC/E-4. g. On 23 August 2007, Orders Number 07-235-00053, issued by HQs, 77th U.S. Army Regional Readiness Command (RRC), the applicant was promoted to the rank/grade of sergeant (SGT)/E-5, effective 16 September 2007. Orders Number 07- 235-00057, issued by HQs, 77th U.S. Army RRC revoked Orders Number 07-235- 00053. h. The applicant's service record is void of evidence of his promotion to the rank of SGT/E5. On 21 May 2009, Orders Number 09-141-00003, issued by HQs, USARC, the applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6, effective 1 May 2009. i. On 17 December 2009, Orders Number A-12-934430, issued by HRC, the applicant was ordered to Contingency Operation Active Duty for Operational Support (CO-ADOS), effective 6 January 2010. j. On 6 April 2010, Orders Number A-04-010520, issued by HRC, the applicant was retained on active duty to participate in the reserve component warriors in transition medical retention processing program for completion of a medical evaluation, effective 5 April 2010. Subsequent orders retained him on active duty for continued medical evaluation. k. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 27 December 2008 and he served in Iraq during the period of 12 January 2009 through 10 March 2010. He was honorably released from active duty by reason of completion of required active service on 8 June 2011. Item 4a (Grade, Rate or Rank) shows "SSG." l. On 24 January 2013, Orders Number 13-024-00082, issued by HQs, 99th Regional Support Command (RSC), the applicant was reassigned to the 1174th Deployment and Distribution Support Battalion, effective 1 February 2013. m. On 1 March 2013, Orders Number 13-060-00011, issued by the Deployment Support Command, the applicant was ordered to active duty in support of Operation Enduring Freedom, effective 19 June 2013. n. On 1 April 2014, Orders Number A-04-402933, issued by HRC, the applicant was retained on active duty to participate in reserve component Soldier in transition medical retention processing program for completion of medical care and treatment, effective 14 March 2014. o. On 2 June 2016, Orders Number 154-0001, issued by the U.S. Army Garrison Fort Detrick Army Element, Walter Reed National Military Medical Center, the applicant was honorably retired and placed on the permanent disability retired list, effective 21 June 2016 in the rank of SSG p. The applicant was honorably retired from active duty, effective 20 June 2016, and assigned to the USAR Control Group (Retired Reserve). Item 4a shows "SSG." q. The applicant turned 57 on 19 July 2014. 4. The applicant provides: a. Joint Service Commendation Medal citation showing the award was presented to the applicant for his support during Operation Iraqi Freedom. b. The August 2012 SFC SEPB results dated 21 September 2012 which shows the SEPB convened on 5 August 2012 to consider eligible Soldiers for retention, transfer to the Individual Ready Reserve or retired reserve. The commanding general approved the SEPB results, and the recommended Soldiers were to be incorporated onto the permanent promotion recommended list. The applicant was considered but not recommended for promotion. c. E-mail traffic with the subject of "Congratulation on Promotion" dated 2 October 2012 from Colonel (COL) to the applicant which stated he heard the applicant was promoted which was a huge accomplishment. The applicant responded stating no one informed him of the SEPB results and questioned if COL was sure he had cause to celebrate. d. Applicant's memorandum dated 1 August 2013 to the September 2013 SEPB which stated the reason for the gap in his NCO evaluation reports (NCOER) was because he was assigned to the Warrior Transition Unit at Fort Drum, NY, during the period of 14 April through 8 June 2010 and was not rated during that period. He also stated there was an error on his DD Form 214 which had shown he only served 2- months in Iraq when he really served from 28 December 2008 through 4 April 2010 which he was attempting to get corrected. During his service in Iraq, he was awarded the: * Joint Service Commendation Medal * Army Good Conduct Medal * Overseas Service Ribbon * Iraqi Campaign Medal * Global War on Terrorism Service Medal * Joint Commendation Medal * Joint Meritorious Unit Award * Overseas Service Bar for 13 January 2009 through 6 March 2010 e. HQs, Regional Command (South) GOMOR dated 21 March 2014 which shows a MSG was reprimanded for creating a hostile work environment which was in violation of the Army Equal Opportunity and Prevention of Sexual Harassment policies by repeatedly making racial or sexual charged statements or jokes in the workplace. f. HQs, Regional Command (South) GOMOR dated 11 April 2014 which shows a Captain (CPT) was reprimanded for using inappropriate language and fraternizing with subordinates, conduct unbecoming of an officer, and disobeying a lawful order when he used inappropriate and unprofessional banter in e-mails to officers. Posting pictures of himself on Facebook of himself in uniform demonstrating vulgar gestures. He made disparaging comments regarding an officer's spouse. g. HRC memorandum dated 3 July 2014, Subject: Notification of Eligibility for Retired Pay at Non-regular Retirement (20-Year Letter) which stated the applicant completed the required years of qualifying service for retire pay on application at age 60. h. The applicant's packet requesting a STAB due to his NCOER with the through date of 4 August 2013 was not reviewed by the Fiscal Year (FY) 2013 SFC SEPB due to his medical evacuation from Afghanistan. His request was endorsed by the chain of command at the Warrior Transition Brigade – National Capital Region (NCR). The applicant submitted a second request for a STAB before the FY 2016 SFC SEPB as he was injured in October 2013 while serving in Afghanistan and he received medical treatment at the Warrior Transition Unit and was not considered for promotion on the previous two SEPB. i. E-mail from MSG - dated 17 March 2015 which stated he was assisting the applicant in the submission of his promotion packet to go before the SEPB the following month. Once the packet was completed it was going to be sent to the applicant's chain of command for review and signature. j. E-mail from MSG dated 31 March 2015 requesting the status of the applicant's promotion packet. The packet was sent to CPT on 23 March 2015 for review. k. Applicant's biography dated 1 September 2015 which lists his civilian and military education and military awards and decorations. It also lists his military experience. 5. On 6 April 2023, in the processing of this case, the U. S. Army Reserve Command (USARC) provided an advisory opinion regarding the applicant's request for promotion to the rank of SFC due to his medical retirement. The advisory official stated the applicant was considered but not recommended for promotion to the rank of SFC on the 99th RSC August 2012 SFC SEPB. There was no evidence the applicant was considered by another SFC SEPB prior to his retirement in June 2016 when he was placed on the Permanent Disability Retired List. The advisory official does not recommend relief as he did not meet the criteria in accordance with Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20e. 6. On 12 April 2023, the Army Review Boards Agency, Case Management Division provided the applicant the advisory opinion for his review and comment. The applicant responded on 17 April 2023, stating the evidence shows beyond a reasonable doubt he should have been promoted to the rank of SFC prior to his retirement. He restates his first promotion packet was submitted through the 354th Transportation Battalion. His second promotion packet was submitted through the 1179th Transportation Brigade on 30 July 2013. While he was in Afghanistan, his CSM received information that he was not eligible for consideration due to his age which was found to be inaccurate. His CSM was asked to have the applicant resubmit a promotion packet; however, the CSM told the board that the packet he submitted was good for 2-years and a new packet did not need to be submitted. The applicant believed the issue was resolved. In November 2013, the applicant was injured in Afghanistan and was medically evacuated to Germany and then onto Walter Reed Medical Center in February 2014. Due to the nature of his injuries the applicant was unable to follow up on his promotion packet nor did he receive any information regarding his packet. While he was assigned to the Warrior Transition Unit at Walter Reed Medical Center a third promotion packet was submitted his chain of command in 2015. This is evidenced by the e-mail traffic from MSG . The applicant believes there was animosity with his unit due to an incident that occurred in Afghanistan which divided the unit. The chain of command at the Warrior Transition Unit supported his request for a Standby Advisory Board due to missing Noncommissioned Officer Evaluation Reports due to him being medically evacuated from theater and the completion of his medical treatment and he was not evaluated during that time. The applicant also provided a statement from his spouse which stated the applicant deployed in December 2008 where he injured his right shoulder severely, but he extended his tour despite the pain. He had reconstructive surgery and spent 15-months recuperating at Fort Drum, NY. The applicant went through multiple surgeries which included hip replacement and insertion of metal rods in his spine which left him requiring an adaptive device in order to drive. He was also misinformed that he would be automatically promoted upon his exit from the military after his Medical Evaluation Board. She knows this occurred because she was waiting at home for his return and could not understand what he thought was so important that he needed to extend. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Headquarters, United States Army Reserve Command (HQ, USARC) advisory opinion, the Board concurred with the advising official finding the applicant did not meet the regulatory requirement for promotion list membership at the time of his medical retirement in June 2016. As noted by the advisory opine the applicant was placed on the Permanent Disability Retired List (PDRL), by the U.S. Army Physical Disability Agency (USPDA) effective 21 June 2016. Evidence shows the applicant was considered for promotion to SFC in August 2012, by the 99th RSC August 2012 SFC Senior Enlisted Promotion Board; however, the applicant was not recommended for promotion to SFC. 2. The Board determined per regulatory guidance Soldiers on a promotion list who are retired for physical disability at the time of retirement for disability will be retired at the promotion list grade. The Board found the applicant does not meet this criterion for promotion since he was not recommended for promotion by the 99th RSC August 2012 SFC Senior Enlisted Promotion Board. Based on this, the Board denied 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) 600-8-19 (Enlisted Promotions and Reductions) in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. a. Paragraph 1-20e, per the provisions of Title 10, USC, section 1372, Soldiers on a promotion list who are retired for physical disability or who are placed on the Temporary Disability Retired List (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. b. 5-7m, (Age) Soldiers who reached age 57 prior to convening date of board are ineligible for consideration. 3. 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 or whose name is placed on the TDRL list is entitled to the grade equivalent to the highest of the following: (1)The grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000535 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1