IN THE CASE OF: BOARD DATE: 21 July 2023 DOCKET NUMBER: AR20230001409 APPLICANT REQUESTS: medical retirement in the rank/grade of sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief (ERB) 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 should have been medically retired from active duty in the rank/grade of SGT/E-5. He completed the Warrior Leader Course (WLC) prior to his separation from active duty. His promotable status was dropped due to not having a current/valid Army Physical Fitness Test (APFT) because he was not provided the opportunity to take a record APFT due to the stigma associated with the medical evaluation board process. When he attended WLC, he completed the minimum requirements for the APFT. If this test would have been on record, he would have been able to retain his promotable status. He served and scarified a lot for the U.S. Army and as such he requests the Board to consider the application of a Soldier who always tried to better himself and those under him during his service. 3. A review of the applicant's service record shows: a. The applicant enlisted in the Regular Army (RA) on 4 October 2010 and had continuous service through extensions or reenlistments. b. The applicant's ERB dated 4 April 2016 shows he had zero promotion points, no promotion sequence number, or promotion selection date. c. The applicant achieved course standards for the WLC during the period of 13 April through 7 May 2015. His DA Form 1059 (Service School Academic Evaluation Report) shows the applicant passed the APFT on 14 April 2015 and met height and weight standards. d. On 14 December 2015, the informal Physical Evaluation Board (PEB) found the applicant physical unfit for retention and recommended he be placed on the Temporary Disability Retired List (TDRL) with 50 percent disability due to panic disorder without agoraphobia which had been incurred or aggravated in the line of duty. The applicant concurred with the PEB finding and waived a formal hearing. e. On 23 February 2016, Orders Number 054-0004, issued by the Installation Management Command Europe, the applicant was placed on the TDRL on 4 April 2016 with 50 percent disability in the rank/grade of specialist (SPC)/E-4. f. The applicant was honorably medically retired due to temporary disability on 3 April 2016 and assigned to the U.S. Army Reserve Control Group (Retired). DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant completed 5-years and 6-months of active service. It also shows in items: * 4a (Grade, Rate, or Rank): SPC * 4b (Pay Grade): E-4 * 12i (Effective Date of Pay Grade): 9 July 2013 g. On 11 January 2018, the informal PEB found the applicant physically unfit for retention and recommended he be placed on the Permanent Disability Retired List (PDRL) with 50 percent disability due to panic disorder without agoraphobia. The applicant concurred with the PEB findings and recommendations and waived a formal hearing. h. On 21 February 2018, Orders Number D052-14, issued by the U.S. Army Physical Disability Agency, the applicant was placed on the PDRL on 21 February 2018 with 50 percent disability in the rank of SPC under the provisions of Title 10, United States Code (USC), section 1201. 4. The applicant provides a ERB dated 11 June 2015 which shows in January 2015 he had 39 promotion points but did not have a promotion sequence number or a promotion selection date. 5. On 17 April 2023, in the processing of this case, the U.S. Army Human Resources Command (HRC) provided an advisory opinion regarding the applicant's request for promotion to the rank of SGT due to his medical retirement. The advisory official stated it was recommended the applicant's request be denied. At the time of the applicant's medical retirement, he was not in a promotable status as indicated on his ERB. There was no indication he was ever in a promotable status which would have allowed for promotion upon retirement, nor does he have a promotion prohibition code on his ERB indicating he was enrolled in the Disability Evaluation System (DES). Though the regulation states that while in the DES, Soldiers will not be required to maintain their APFT qualification for the purpose of promotion eligibility or pin on if they have a profile that disallows an APFT, the applicant did not have physical limitations on his ERB, only psychological limitations at the time of his retirement. 6. On 19 April 2023, the Army Review Boards Agency, Case Management Division provided the applicant the advisory opinion for review and comment. 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 contentions, the military record, and regulatory guidance. The applicant contends that his promotable status was dropped due to not having a current/valid Army Physical Fitness. However, evidence of record, specifically his Enlisted Record Brief, shows that the applicant was never in a promotable status which would have allowed for promotion at the time of retirement or that he was enrolled in the Disability Evaluation System. Based on the documentation available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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 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 1-20c, while in the DES, Soldiers will not be required to maintain their APFT or weapons qualification for the purpose of promotion eligibility or pin-on. For semi-centralized promotion consideration, selection, and pin-on, Soldiers within the DES who are unable to perform an APFT or qualify with a weapon will use their last score until they are medically cleared to take the APFT or qualify with a weapon. Soldiers within the DES due to combat-related operations who failed to qualify with a weapon or failed their last APFT will be granted the minimum qualifying score. b. 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 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. 3. Title 10 USC, section 1372 (Grade on retirement for physical disability: members of armed forces) 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: a. 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. b. 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. c. 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. d. 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) AR20230001409 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1