IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230000644 APPLICANT REQUESTS: correction of his records to show he was retired in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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, the record of him being an E-5 is a reflection of him falling to the depths of alcoholism and addiction and in turn being demoted. He honorably served as an E-6 for about 4 years and was demoted for failing a drug test during a bipolar manic episode. He would like to be reconsidered to be retired as an E-6. It is not for any sort of monetary gain, but to have closure with his military career and to be honorably buried as an E-6. 3. A review of the applicant's military record shows the following: a. On 24 July 2009, he enlisted in the Regular Army. b. On 1 December 2013, the applicant was promoted to the rank of SSG. c. On 18 May 2017, DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) shows he accepted non-judicial punishment for wrongfully using cocaine a schedule II-controlled substance on or about 1 to 21 February 2017. His punishment consisted of reduction to SGT/E-5; and forfeiture of pay, suspended, to be automatically remitted if not vacated on or before 18 November 2017. He did not appeal. d. On 22 November 2017, an Informal Physical Evaluation Board (PEB) found the applicant physically unfit and recommended his disposition be placed on the Temporary Disability Retired List (TDRL) with a re-examination during August 2018. He was rated at 50 percent for Bipolar I Disorder. He concurred and waived a formal hearing of his case. e. Enlisted Record Brief (ERB) dated 18 January 2018 shows he was not on a promotion list to SSG. f. On 22 January 2018, the U.S. Army Support Activity, Joint Base Langley-Eustis published Orders Number 022-0003, retiring the applicant, effective 6 April 2018, and placing him on the TDRL in the retired grade of SGT, effective 7 April 2018. In pertinent part, the Orders show: * Statute authorizing retirement: 1202 [Title 10, United States Codes (USC), section 1202] * Other eligible laws: 1372 [Title 10, USC, section 1372] * Retirement type and allotment code: TEMP DISABILITY/6 * Percentage of disability: 50 g. On 6 April 2018, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired under the provisions of Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation), Chapter 4, by reason of "disability, temporary (enhanced)." Item 4a (Grade, Rate or Rank) shows SGT, and item 12i (Effective Date of Pay Grade) shows 18 May 2017. h. On 16 October 2020, DA Form 199 (Informal PEB Proceedings) shows an Informal PEB found the applicant physically unfit and recommended that his disposition be permanent disability retirement. The applicant's Bipolar 1 disorder was rated at 100 percent. He concurred and waived a formal hearing of his case. i. Orders Number D338-04 published by the U.S. Army Physical Disability Agency removed the applicant from the TDRL because of permanent physical disability and permanently retired him in the grade of SGT, effective 3 December 2020. In pertinent part, the Orders show: * Percentage of disability: 100 percent * Retirement type and allotment code: Permanent/10 * Statute authorizing retirement: 1201 [Title 10, USC, section 1201] 3. On 5 April 2023, the U.S. Army Human Resources Command (HRC), Chief, Enlisted Promotions Branch, provided an advisory opinion for this case and determined the applicant's request should be denied. The HRC advisory official stated: a. After review of the applicant's application for correction of military records, it has been determined that his request for correction of military records should be denied. b. A review of the applicant's military records indicates that he was serving as a SSG from 1 December 2013 until 18 May 2017 when he was reduced as a result of an Article 15 under the Uniform Code of Military Justice for the use of an illegal substance. c. AR 600-8-19 (Enlisted Promotions and Reductions, dated 25 April 2017, the regulation in effect at the time he was retired, paragraph 1-20e., 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 number, or position availability. d. A review of the attached ERB, dated 9 April 2018, indicates that the applicant was not on a promotion list to SSG at the time of his retirement. Based on the regulatory guidance above, he is not eligible for retroactive promotion. 4. On 11 July 2023, the applicant was provided a copy of the HRC advisory opinion for comments or rebuttal. He did not respond. 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 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 U.S. Army Human Resources Command (HRC), Chief, Enlisted Promotions Branch advisory opinion, the Board concurred with the advising official finding the applicant was reduced as a result of an Article 15 for misconduct. Evidence in the record show the applicant was not on a promotion list to staff sergeant at the time of his retirement. Based on regulatory guidance, the Board determined the applicant is not eligible for retroactive promotion. The Board found there is insufficient evidence to support correction of the applicant’s records to show he was retired in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5. Therefore, relief was denied. ? 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. ADMINISTRATIVE NOTE(S): N/A 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. 3. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 1-21 (Promotion of Soldiers in the Disability Evaluation System) provides that, per the provisions of Title 10, USC, section 1372, Soldiers on a promotion list who are retired for physical disability (10 USC 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (10 USC 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 Noncommissioned Officer Professional Development System requirements in paragraph 1–29 is waived). 4. 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 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) AR20230000644 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1