IN THE CASE OF: BOARD DATE: 3 January 2024 DOCKET NUMBER: AR20230003989 APPLICANT REQUESTS: * reconsideration to correct his rank from specialist (SPC)/E-4 to sergeant (SGT)/E-5. * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 428-031, 21 June 2013 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 AR20210015631 on 30 August 2022. 2. The applicant states he previously tried to have his record corrected to show the rank of SGT. It was denied due to lacking evidence. He was promoted to the rank of SGT in July 2013. He is not sure what caused the error. Over the years he was in and out of inpatient Post-Traumatic Stress Disorder (PTSD) treatment, so he was not able to correct right away. He has found a copy of his orders promoting him to SGT. Please review and correct. 3. A review of the applicant's military records show the following: a. On 23 September 2005, he enlisted in the Regular Army. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows he reenlisted for 6 years in the rank of SPC on 15 November 2007. b. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) dated 17 September 2012, shows a flag was initiated against the applicant for adverse actions. The applicant's rank was listed as SGT. c. On 17 January 2013, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice. On or about 4 July 2012, at or near Khiliguy, Afghanistan, the applicant failed to obey a lawful general order by wrongfully chambering a round in a Hungarian P9RC pistol and discharging the weapon in the living quarters at 514th Support Maintenance Company, 378th Sustainment Support Battalion. His punishment consisted of a reduction from SGT to SPC. He did not appeal his punishment. d. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) dated 15 July 2013 shows the applicant was found physically unfit for PTSD. The PEB recommended placement on the Temporary Disability Retirement List (TDRL) with a rating of 70 percent. The applicant concurred with the findings and waived a formal hearing. The applicant's rank was listed as SGT. e. On 14 July 2013, DA Form 4187 (Personnel Action) shows he formally requested "TDRL Disability Retirement on 27 August 2013." His rank was listed as SPC. In pertinent part, the form states: (1) "Will Soldier become promotable/promoted prior to their separation date? No" (2) In accordance with Title 10, United States Code (USC), section 1372, Soldiers who are on a promotion standing list or have reached the time-in-service requirement for promotion to the next higher grade at the time of retirement, will be retired at the promotable grade and be promoted that grade effective the day before placement on the retired list. f. On 14 August 2013, DA Form 4187 shows the applicant's request was approved. g. DD Form 2648 Test (Pre-separation Counseling Checklist for Active Component, Active Guard/Reserve, Active Reserve, Full Time Support, and Reserve Program Administrator Service Members) dated 19 August 2013, lists the applicant's rank as SGT. h. On 19 August 2013, the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Drum, published Orders Number 231-1002, which retired the applicant, effective 27 August 2013, and placed him on the TDRL in the retired rank of SPC/E-4, effective 28 August 2013. The orders list his rank as SPC and show, in pertinent part: * Percentage of disability: 70 * Retirement type and allotment code: "TEMP Disability/6" * Statute authorizing retirement: Title 10, USC, section 1202 * Other eligible laws: 1372 [Title 10, USC, section 1372] i. DD Form 2958 (Service Member's Individual Transition Plan Checklist) dated 26 August 2013, which was signed by the commander (or their designee) and the applicant lists his rank as SPC. j. DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 27 August 2013 honorably retired the applicant. It shows in: * Block 4a (Grade, Rate or Rank) – SPC * Block 4b (Pay Grade) – E-4 * Block 12c (Net Active Service This Period) – 7 years, 11 months, and 5 days * Block 12i (Effective Date of Pay Grade) – 17 January 2013 * Block 28 (Narrative Reason for Separation) – "Disability, Temporary (Enhanced)" k. DA Form 199 dated 20 November 2015, shows the applicant was found physically unfit for PTSD. The PEB recommended permanent disability retirement at a rating of 50 percent. The applicant concurred with the findings and waived a formal hearing. The applicant's rank was listed as SGT. l. Orders Number D 004-18 published by the U.S. Army Physical Disability Agency, dated 4 January 2016, removed the applicant from the TDRL because of permanent physical disability and permanently retired him with disability rating of 50 percent. The orders list his rank as SGT. m. On 30 August 2022, ABCMR Record of Proceedings Docket Number AR20210015631, shows the Board denied his request to change his rank from SPC to SGT. The Board noted that the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to obey a lawful general order by wrongfully chambering a round in a Hungarian P9RC pistol and discharging the weapon in the living quarters at 514th Support Maintenance Company, 378th Sustainment Support Battalion. His punishment consisted of a reduction from SGT to SPC. He did not appeal his punishment. There was no evidence he was promoted back to SGT between the date he was reduced and the date he was separated. Based on a preponderance of evidence, the Board determined that the grade the applicant received upon separation was not in error or unjust. 4. The applicant's official military records in the Interactive Personnel Electronic Records Management System did not contain orders promoting him back to SGT/E-5. 5. In support of his case, the applicant provides Orders Number 428-031 published by Headquarters, 3-85 Mountain Infantry Regiment and Fort Drum, dated 21 June 2013, which shows he was promoted from SPC to SGT, effective on with a date of rank of 1 July 2013. The orders also state, the promotion is not valid, and this order will be revoked if he is not in a promotable status on the effective date of promotion. 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, the Board determined there is insufficient evidence to show the applicant was promoted back to the rank of SGT after his reduction in rank due to UCMJ actions. The Board noted the applicant’s DA Form 199 dated 20 November 2015 and his Orders Number D 004-18 published by the U.S. Army Physical Disability Agency, dated 4 January 2016 reflect his rank as SGT. However, the Board found no evidence the applicant was promoted to SGT with official orders. The Board agreed, the applicant did not demonstrate that his records are in error. Furthermore, the applicant flagging action prevented him from promotion. Based on the preponderance of evidence, the Board found reversal of the previous Board decision is without merit and denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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 AR20210015631 on 30 August 2022. 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. Army Regulation (AR) 15–185 (Army Board for Correction of Military Records) 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. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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. 2. AR 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. Paragraph 5-6 (Rules for completing the DD Form 214) provides detailed instructions for data required in each block of the DD Form 214. The instructions for block 4a state to verify that active-duty grade or rank and pay grade are accurate at time of separation. 3. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. In pertinent part, it states: a. Paragraph 1-10 (Non-promotable status) states, Soldiers (SPC through master sergeant (MSG)) are non-promotable to a higher grade when a Soldier was punished under the Uniform Code of Military Justice (UCMJ), Article 15, including suspended punishment, except any summarized proceedings imposed according to AR 27-10, is excluded, and will not result in non-promotable status. b. Paragraph 1–20 (Promotion of Soldiers pending referral to a Military Occupational Specialty Medical Retention Board, medical evaluation board, or physical evaluation board states, (1) Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board (MMRB) under AR 600–60 or referral to a medical evaluation board (MEB) under AR 40–400 or physical evaluation board (PEB) under AR 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. (2) Soldiers who have been conditionally promoted but are unable to meet the condition of their promotion solely because of a medical condition that results in a finding of unfit by the Physical Disability Evaluation System (PDES) will not be subject to administrative reduction if otherwise qualified to retain promotable status. (3) Per the provisions of Title 10, USC, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. c. Paragraph 3–17 (Department of the Army directed promotion list integration to sergeant and staff sergeant) states, each month, Active Army Soldiers in all MOSs who meet the following criteria will be automatically integrated onto the SGT and SSG promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance as outlined below— * To SGT — * 46 months time in service (to become eligible for promotion at 48 months) * 10 months time in grade (to become eligible for promotion at 12 months) * Otherwise not ineligible in accordance with this regulation * Not otherwise denied by the Commander * Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list d. Section IX (Task: Processing Removal from Recommended List), Paragraph 3-24 (Rules) states, (1) Soldier must be informed of removal action, in writing. (2) Promotion packets of Soldiers who are removed from a recommended list will be retained in the local promotion files for 2 years and in the RHA 3 years. (3) Soldier will be informed through normal channels of removal action, in writing, no later than 5 duty days after removal. (4) Once the Soldier is removed the action is final. (5) Soldiers will be immediately removed from a recommended list for all conditions listed in table 3–10, below. * The following adverse actions (table 3–10, code D, below) require removal of a Soldier from a recommended list: * Conviction by court-martial, including summary court-martial. * Nonjudicial punishment imposed under provision of Article 15, UCMJ (not including summarized proceedings), regardless of whether the punishment is suspended * Initiation of administrative separation proceedings under provisions of AR 635–200. Soldiers undergoing medical processing under provisions of AR 635–40 will remain on the recommended list unless separated //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003989 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1