IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230002297 APPLICANT REQUESTS: reconsideration of his previous request for: * issuance of Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * retroactive promotion to the rank/grade of staff sergeant (SSG)/E-6 * payment of his bonus * in effect, payment of Concurrent Retirement Disability Pay (CRDP) and Combat Related Special Compensation (CRSC) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * document CRSC and CRDP * Letter from Clinical Psychologist * Memorandum, Subject: Notification to Appear before Administrative Separation Board * DA Form 2173 (Statement of Medical Examination and Duty Status * Memorandum, Subject: Medical Retention Determination Point (MRDP) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * DA Form 1559 (Inspector General (IG) Action Request) * Memorandum, Subject: Permanent Physical Disability Retirement * Orders Number D 057-05 Retirement Order * DA Form 4187 (Personnel Action) * Letter from Army Review Boards Agency (ARBA) * Letter from Department of Veteran's Affairs (VA) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20210007455 on 9 November 2021. 2. The applicant states, in his application and self-authored letter, in effect: a. He would like to be considered for promotion to SSG/E-6 and payment of his bonus for peace of mind. He believes he was cheated out of his 20 year letter to get his benefits reinstated. He served as the front runner for C Company and A Company for 18 years and was supposed to go to RAFF (unknown acronym) but was falsely accused of sexual harassment. b. The correction is necessary because he was cheated out of promotion points, by his chain of command. He was falsely accused of sexual harassment and his chain of command did nothing to stop the defamation of his character. All the documents to support his claim should be in his interactive personnel electronics records management system record or have been covered up by his chain of command. c. He is trying to get his 20-year letter and his promotion to the rank of SSG/E-6. He has been medically retired from the military since 1 April 2020 because his chain of command tried to falsely accuse him of sexual harassment. d. He went to court, and they tried to frame him for actions he did not commit. He has been to the IG's office multiple times over this matter and his chain of command keeps saying, since 2017, he had to be on the promotion list to get promoted. He has completed all required eligibility criteria to be promoted, except Structured Self- Development (SSD) Level II, because he had never heard of the program, and he was going to court at that time. e. He believes he is entitled to his training days from 2019 and 2018 that he was supposed to go to school to get his promotion but was denied the right to do so because of a deployment to Guatemala. f. Furthermore, he has not received any medical disability retirement from the military for service-connected disability, which is a rating of 80 percent, but he has not received any payment or back pay for his disability. 3. CRDP is a program managed through the VA in concert with the Defense Finance and Accounting Service. The member may be entitled to CRDP with 20 qualifying years of service for retirement, and who has a disability rating of 50 percent or greater as rated by the VA. Entitlement to CRDP is not under the purview of the Board and will not be considered by the Board. Likewise, CRSC is a program managed by the U.S. Army Human Resources Command (HRC). A determination of entitlement to CRSC is made after the applicant provides supporting documentation to HRC and HRC establishes a nexus between service-connected disabilities and an instrumentality of war. An initial determination of entitlement to CRSC is not under the Board's purview and will not be considered. The Board will consider the applicant's reconsideration request to be issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), promotion to SSG/E-6, and payment of his bonus. 4. The applicant's service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) dated 4 October 2000 shows the applicant enlisted in the Army National Guard (ARNG) for a period of 8 years. b. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant, as a member of the ARNG, entered active duty on 12 October 2003 and was released to his ARNG unit on 19 November 2004. He completed 1 year, 1 month, and 8 days of net active duty service. He served in Iraq from 26 March 2004 through 6 November 2004. c. DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment) shows the applicant extended his enlistment on: * 4 March 2006, for a period of 6 years * 31 July 2011, for one year * 13 November 2012, for a period of 6 years * 17 July 2019, for one year d. National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus Addendum ARNG of the United States), dated 30 March 2006, shows the applicant extended his enlistment for 6 years to receive a bonus in the amount of $15,000.00. e. On 5 January 2008, the applicant entered active duty in support of Operation Iraqi Freedom. f. DD Form 214 shows the applicant, as a member of the ARNG, was released to his ARNG unit on 4 February 2009. He completed 1 year and 1 month of net active duty service. He served in Iraq from 16 March 2008 through 9 December 2008. g. DA Form 1059 (Service School Academic Evaluation Report), dated 7 March 2009 shows the applicant completed the Warrior Leader Course. h. Orders Number 331-855, published by the Military Department of Arkansas, Office of the Adjutant General, dated 26 November 2012, the applicant was promoted to the rank/grade of sergeant (SGT)/E-5, effective 20 November 2012. i. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 15 January 2020 shows the PEB found the applicant physically unfit and recommended a rating of 70 percent and that his disposition be permanent disability retired. The applicant concurred with the recommendation and waived a formal hearing of his case. j. Enlisted Record Brief, dated 5 February 2020, section I (Assignment Information) shows the applicant's military occupational specialty as 11B (Infantryman) and was void of a current or previous promotion points or that he was promotable. k. A letter from U.S. Army Physical Disability Agency (USAPDA), dated 26 February 2020, Subject: Permanent Physical Disability Retirement advised the applicant that in accordance with the findings and recommendation of the USAPDA, he had been found to have a disability and would be permanently retired with a disability rating of 70 percent. l. Orders Number D 057-05, published by USAPDA, dated 26 February 2020 retired the applicant due to permanent physical disability with a 70 percent disability rating in the rank of SGT, effective 1 April 2020. m. NGB Form 22 (Report of Separation and Record of Service) transferred the applicant to the Retired Reserve on 1 April 2020. He completed 19 years, 5 months, and 28 days of net service this period. His total service for pay was 19 years, 5 months, and 28 days and his total service for retired pay was 18 years. n. On 10 April 2020, Orders Number 0000317134.00 issued by the Arkansas ARNG, Army Element Joint Force Headquarters, the applicant was transferred to the Temporary Disability Retired List (TDRL), effective 2 April 2020. o. The applicant's service record is void of documentation showing he was recommended for promotion to the rank of SSG, void of information showing he was not paid his bonus in full, and void of a request for payment of CRSC. 5. The applicant provides the following documents, not previously considered, for the Board's consideration: a. A document entitled CRSC and CRDP, which contains the eligibility requirements for both entitlements and notes from the applicant which states "20 years of service and 50 percent or more rating from the VA for CRDP and award CRSC for his DD Form 214." b. A letter from a Clinical Psychologist, dated 13 March 2018, which states the applicant was being seen at the Little Rock VA Medical Center Mental Health Clinic. He was receiving psychiatric medications and participating in individual psychotherapy. c. Memorandum, Subject: Notification to Appear Before the Administrative Separation Board, dated 8 June 2018, stated an administrative separation board would convene to consider the evidence relating to the applicant's case. The entire memorandum is available for the Board's consideration. d. DA Form 2173, dated 13 December 2008, states the applicant had a history of a cough, decreased hearing, and anxiety, while he was deployed. The entire form is available for the Board's consideration. e. Memorandum, Subject: MRDP memo for the applicant, dated 10 May 2019 shows the applicant failed to meet retention standards due to anxiety - line of duty. f. DA Form 1559 dated 9 December 2019, wherein the applicant was requesting the IG's assistance to check his bonus and the false accusation of sexual harassment case that dishonored his character for promotion. He extended for a year, but he was trying to get to 20 years on his medical discharge. g. DA Form 4187 dated 1 February 2020, wherein the applicant states if he was determined to be unfit for duty due to physical disability, he requested continuation in lieu of retirement or separation. He requested an assignment compatible with the limitations of his profile within his current branch and military occupational specialty. He understood if compatible assignments were not available, he might be required to reclassify. He was requesting continuation until he had obtained 20 years of creditable service. h. A letter from ARBA, dated 12 August 2021, which stated they had received an advisory opinion in his previous case, and they had forwarded the advisory opinion to the applicant. i. A letter from the VA, dated 8 January 2021, which states the applicant's combined service-connected disability rating was 80 percent; however, he was being paid at the 100 percent rate because he was unemployable due to his service- connected disabilities. The letter did not list the disabilities that were service connected. 6. In the processing of the case, ARBA requested a sanitized copy of a Report of Investigation and/or Military Police Report concerning Sexual Assault/Harassment regarding the applicant from the Criminal Investigation Division (CID). On 11 April 2023, CID responded stating a search of the Army criminal file indexes utilizing the information ARBA provided revealed no records pertaining to the applicant. 7. The applicant previously petitioned the Board for promotion to SSG and issuance of a 20-year letter in AR20210007455. On 9 November 2021, the Board, denied the applicant's request stating after reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation, the findings and recommendations of National Guard Bureau (NGB) and the lack of any rebuttal submitted by the applicant of those findings and recommendations, the Board concluded there was insufficient evidence of an error or injustice which would warrant issuing a 20-year retirement letter to the applicant and/or retroactively promoting him to SSG. 8. In the processing of the applicant's previous case, AR20210007455, the applicant provided an IG response, dated 7 December 2017, to one of his IG requests, which states, in effect, the letter was a final response from the IG concerning the applicant's request for assistance in researching the status of his reenlistment bonus. The Guard Incentives Management System showed that all payments of his reenlistment bonuses had been distributed to him. 9. In the processing of the applicant's previous case, AR20210007455, an advisory opinion was obtained from the NGB, which states in effect: a. The applicant was requesting a length of service retirement and promotion to the rank of SSG. The NGB recommended disapproval of the applicant's request. b. The applicant's informal PEB convened on 15 January 2020, and he was found unfit for continued service. On 21 January 2020, the applicant concurred with the PEB's findings and waived a formal hearing of his case and reconsideration of his VA rating. c. On 10 April 2020, the applicant was transferred to the Retired Reserve with an effective date of 1 April 2020. At the time of the transfer to the Retired Reserve for placement on the TDRL, he had a total of 19 years, 5 months, and 28 days of service and 18 years of service for retired pay. d. Documents obtained from the USAPDA indicated the applicant was counseled on his options to pursue a request for Continuation in the Active Reserve (COAR). The applicant initialed and dated on 20 September 2019 affirming that he was informed and understood the criteria and procedures for requesting COAR and that failure to meet the required timelines would result in return without action or further consideration of the request. e. Soldiers pending placement on the TDRL are eligible to be considered for COAR if they otherwise meet the criteria. Once the Soldier is on the TDRL, the Soldier is no longer eligible to be considered for COAR during the TDRL reevaluation. There is no indication from USAPDA or the Arkansas ARNG the applicant completed a COAR request. The ultimate approval authority for a COAR would be The Adjutant General, Arkansas ARNG. f. Additionally, the applicant requested to be promoted to the rank of SSG. Soldiers on a promotion list who are retired for physical disability or who are placed on the TDRL at the time of retirement or disability will be retired for disability at the promotion list grade. The Soldier would 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. g. At the time the applicant was determined medically unfit, he had not been considered for promotion to SSG, at any time. He had not did not complete the required SSD Level II to be eligible for promotion consideration and therefore did not meet the eligibility criteria. h. The opinion was coordinated with the USAPDA. The Arkansas ARNG concurred with the recommendation. i. The advisory opinion was provided to the applicant on 23 July 2021 to allow him the opportunity to respond and he did not respond. 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 National Guard Bureau advisory opinion, the Board concurred with the advising official finding the applicant was not considered for promotion to staff sergeant prior to being determined medically unfit. Evidence in the record show the applicant had not completed the required SSD Level II to be eligible for promotion consideration and therefore did not meet the eligibility criteria. The Board noted the applicant concurred with his PEB findings and waived a formal medical hearing of his case as well as reconsideration of his VA rating on his DA Form 199. 2. Furthermore, the Board determined at the time of transfer to the Retired Reserve for placement on the temporary disability retired list (TDRL) he had a total of 19 years, 5 months, and 28 days of service and 18 years of service for retired pay. The Board found the applicant was counseled on his options to pursue a request for Continuation in the Active Reserve (COAR). The applicant initialed and dated on 20 September 2019 in block 34 of DD Form 5893 affirming that he was informed and understood the criteria and procedures for requesting COAR and that failure to meet the required timelines would result in return without action or further consideration of the request. Based on the advisory opine and evidence in the record, the Board determined there was insufficient evidence to amend the previous Board decision and 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20210007455 on 9 November 2021. 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, United States Code (USC), sections 12731-12737, a Reserve Soldier must have completed a minimum of 20 qualifying years of service, to be creditable for non- regular retirement. 2. Army Regulation (AR) 135-180 (Retirement for Non-Regular Service) prescribes policies and procedures governing non-regular retirement. Paragraph 2–4. Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter), under Title 10, USC, section 12731a Reserve Component (RC) Soldiers who complete the eligibility requirements in section I will be notified in writing within 1 year after completion of the required service in accordance with AR 140–185. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued to Soldiers credited with 20 years of qualifying service and should be issued prior to discharge or transfer to the Retired Reserve. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued by the U.S. Army Human Resources Command (HRC) for all U.S. Army Reserve Soldiers except for those who are within 2 years of qualifying for an active-duty retirement and can remain on active duty to complete the required service. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued in the format determined by HRC. 3. AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-21e, states 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. In all cases, the Soldier must otherwise be eligible for promotion in accordance with paragraph 1-11 (the NCOPDS requirements in paragraph 1-29 are waived). 4. Title 37, USC, Section 331 (General Bonus Authority for enlisted members) The Secretary concerned may pay a bonus under this section to a person, including a member of the armed forces, who— a. Enlists in an armed force; b. Enlists in or affiliates with a Reserve Component of an armed force; c. A bonus authorized by subsection (a) may be paid to a person or member only if the person or member agrees under subsection (d)— (1) to serve for a specified period in a designated career field, skill, unit, or grade; or (2) to meet some other condition or conditions of service imposed by the Secretary concerned. d. A bonus paid under paragraph (1) or (2) of subsection (a) may not exceed $50,000.00 for a minimum two-year period of obligated service. A bonus under this section may be paid in a lump sum or in periodic installments, as determined by the Secretary concerned. e. To receive a bonus under this section, a person or member determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned that specifies— * the amount of the bonus * the method of payment of the bonus under subsection (c)(2) * the period of obligated service; and * the type or conditions of the service 5. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation Headquarters) chapter 6 states, the fact that a Soldier has or has not applied for COAR will not influence the determination of fitness or the determination of the disability rating percentage, when applicable. A Soldier who has been found unfit by a PEB for further military Service has no inherent or vested right to continuation. Soldiers must elect to be considered for COAR. However, the SECARMY, or designee, may involuntarily continue the Soldier in consideration of the Soldier’s service obligation, special skill, or experience. Requests will be approved based on the needs of the Army. Requests will not be approved solely to increase the Soldier’s separation or retirement benefits. A status of COAR is not authorized until a finding of unfit is approved by USAPDA. To be eligible for COAR a member must have at least 15 but less than 20 years of qualifying service for a non-regular retirement, be qualified in a critical skill or shortage military occupational specialty, and the disability must have resulted from combat or terrorism. The approval authority for ARNG is the Adjutant General of the enlisted Soldier's respective State. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002297 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1