PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 July 2002
         DOCKET NUMBER: AR2001060665


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. John P. Infante		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, correction of his records to undo what he believes was an erroneous rescission of his promotion to Staff Sergeant while on active duty.

3. The applicant states, in effect, that he had met all requirements for promotion to Staff Sergeant as of 1 October 1999; that he was not due to separate from active duty until August 2002; that he was promoted to Staff Sergeant; that after he was medically evaluated, his promotion orders were rescinded; and that this rescission of promotion orders may have been done incorrectly.

4. To support his contentions, the applicant has submitted a copy of the following documents: extracts from Army Regulation (AR) 600-8-19, paragraph 3-36j, and US Special Operations Command Memorandum, Subject: Report of Promotion Board Proceedings for Promotion to SGT and SSG, dated 7 October 1997. He also submitted a copy of the following orders: Personnel Service Support Team (PSST) Orders 280-1, MacDill Air Force Base (AFB), Florida, dated 07 October 1999; PSST Orders 322-0003, dated 18 November 1999; PSST Orders 337-03, dated 03 December 1999; PSST Orders 341-0006, dated 07 December 1999 and PSST Orders 347-0002 and 347-0003 both dated 13 December 1999. The applicant also included a copy of his leave and earning statement for the period from 1 through 31 December 1999, a DD Form 363A, Certificate of Retirement, dated 12 January 2001; and, a copy of Orders D01-93, US Army Physical Disability Agency, dated 11 January 2001.

5. The applicant's military records show that the applicant enlisted in the Reserve on 21 September 1989 and entered active duty on 20 July 1990. He served continuously until 4 January 2000 when he was released from active duty due to temporary disability reasons. He was honorably released from active duty in the rank and pay grade of Sergeant (SGT), E-5, with an effective date of rank of 1 October 1999 in the Military Occupational Specialty (MOS) 96B20, Intelligence Analyst. On the date of his separation, he had a total of 9 years, 5 months and 15 days net active service with 9 months 29 days total prior inactive service.

6. The applicant appeared before the US Army Element, US Special Operations Command, Enlisted Promotion Board, on 7 October 1997. Applicant was found qualified and was recommended for promotion to the rank and pay grade of SSG, E-6, in the MOS 96B30 (Intelligence Analyst). He attained promotion list status.

7. The applicant remained on the promotion list from 7 October 1997 until October 1999. On this date, promotion orders were published by the PSST at

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MacDill AFB promoting him to the rank and pay grade of SSG, E-6. Promotion was made in accordance with AR 600-8-19, paragraph 3-34l and US Total Army Personnel Command Letter, TAPC-MSP-E, dated 15 September 1999, Subject: DA Promotion Cut-Off Scores for October 1999. Applicant's promotion was announced in PSST Orders 280-01, dated 7 October 1999. Effective date of promotion and date of rank were 1 October 1999.

8. Promotion orders included several conditions. Among them was one that stated, "the promotion is not valid and this order will be revoked if he (the promoted individual) is not in a promotable status on the effective date of promotion."

9. The applicant was referred, according to available documents, from Winn Army Community Hospital, Fort Stewart, Georgia, on 23 June 1999, to the Physical Evaluation Board, Fort Sam Houston, Texas. Applicant's medical records were put before a medical board on 23 August 1999. Records were reviewed by the Physical Evaluation Board on 19 October 1999, and an informal decision about his physical disability was reached on the same date. His records were then referred to the Physical Disability Agency on 29 October 1999 then to the Physical Disability Board on 2 November 1999.

10. On 18 November 1999, the PSST, MacDill AFB, published Orders 322-0003 which reassigned the applicant to the US Army Transition Activity to be released from assignment and duty effective 3 January 2000 because of temporary physical disability. These orders reassigned the applicant to the Transition Activity in the rank and pay grade of SSG, E-6.

11. On 3 December 1999, a determination was made that the applicant was in a nonpromotable status on the effective date of promotion; and hence, promotion orders were revoked. Revocation of promotion orders was announced in PSST Orders 337-03, dated 3 December 1999. The authority quoted in these orders reads as follows: "AR 600-8-19 Soldier was found not MOS qualified at time of promotion after approved MMRB."

12. On 13 December 1999, the PSST revoked Orders 322-0003 which had earlier reassigned the applicant to the US Army Transition Activity in the rank and pay grade of SSG, E-6. New orders, Orders 347-0003, were published reassigning the applicant to the US Army Transition Activity for release from assignment and duty effective 10 January 2000 because of temporary physical disability. These orders were published showing the rank of SGT in the standard name line.

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13. On 4 January 2000, the applicant was honorably separated for the purposes of retirement under the provision of AR 635-40, paragraph 4-24B(2) for reasons of temporary disability. Item 4a of the DD Form 214 that he was provided on his separation date shows his rank to be SGT and Item 4b shows his pay grade to be E-5.

14. On 11 January 2001, The US Army Physical Disability Agency published orders D01-93 and removed the applicant from the temporary disability retired list on that same date. He was placed on the permanent physical disability retired list in the rank of Staff Sergeant. The applicant was provided a DD Form 363A, Certificate of Retirement for the Armed Forces of the United States of America. This certificate certifies that he was retired in the rank of Staff Sergeant on
12 January 2001.

15. Paragraph 1-10, AR 600-8-19, with an effective date of 1 November 1991, which was then in effect, states, in pertinent part, "Soldiers (PV1-MSG) are nonpromotable to a higher grade when one of the following conditions exist:
'u. A Physical Education (sic) Board (PEB) [hereafter referred to correctly as the Physical Evaluation Board] determines that a soldier is no longer qualified for continued active service.' " This same regulation goes on to state that, "Erroneous promotions will be revoked." The words, Physical Education Board were changed to read, Physical Evaluation Board in Immediate Action Interim Change No. I01 on 8 April 1994. The 1 November 1991 edition of AR 600-8-19 was in effect until it was superseded on 1 May 2000. Paragraph 3-36j, AR 600-8-19 is not relevant to this case and therefore will not be further discussed in this case analysis.

16. The MMRB (MOS/Medical Retention Board) is an administrative screening board charged with the responsibility of comprehensively evaluating a soldier's ability or inability to physically perform PMOS (Primary Military Occupational Specialty) or specialty code tasks in a worldwide field environment. On completion of the evaluation, the MMRB will recommend to the convening authority -

         (1) A soldier's retainability in PMOS or specialty code.
         (2) The requirements to be reclassified.
         (3) Probationary status.
         (4) Referral to the Army's physical disability system.

17. In a worldwide field environment, referred to in the paragraph above, is defined as, "the soldier's ability to perform PMOS/Specialty physical tasks both in garrison and the field in any geographical or climatic environment in which the Army has a requirement."

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18. AR 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214. This regulation states, in pertinent part, that the Grade, Rate or Rank and the Pay Grade will be entered in Items 4a and 4b to reflect the rank and pay grade in which the individual is serving at the time of separation.

19. Title 10,United States Code 1372 requires that soldiers retired for disability are retired at the rank they would have held had it not been for disability retirement.

CONCLUSIONS:

1. The applicant appeared before and was selected for promotion to the rank and pay grade of SSG, E-6, by a duly constituted promotion selection board. He was placed on a promotion standing list to the pay grade E-6.

2. The applicant was awarded a permanent physical profile and was referred to the Physical Evaluation Board at Fort Sam Houston, Texas, on 23 June 1999.

3. The applicant's medical records were put before a medical evaluation board on 23 August 1999.

4. The applicant was promoted to the Rank and Pay Grade Staff Sergeant, E-6 on 7 October 1999 with an effective date and date of rank of 1 October 1999. Promotion to the rank and pay grade of Staff Sergeant, E-6 was made before the Physical Evaluation Board made a determination that he was no longer qualified for further service in his PMOS.

5. The applicant's medical records were reviewed by the Physical Evaluation Board on 19 October 1999. An informal decision about his physical disability was reached on this same date. His records were then referred to the Physical Disability Agency on 29 October 1999 then to the Physical Disability Board on
2 November 1999.

6. On the date that promotion orders were published promoting him to the rank of Staff Sergeant, he was in a promotable status. On the effective date of his promotion, 1 October 1999, the applicant's records had not yet been reviewed by the Physical Evaluation Board and a decision about his retainability in service had not yet been made, and therefore, the promotion orders should not have been revoked by the PSST.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

         a. amending Items 4a and 4b of his DD Form 214 to show that the applicant's promotion was not rescinded or revoked and that he was serving in the rank and pay grade of SSG, E-6 on the date he was released from active duty for the purposes of temporary disability retirement.

         b. performing a comprehensive review of his military pay record and returning any and all pay and allowances to which the applicant was deprived because of the erroneous rescission of his promotion orders to Staff Sergeant,
E-6.

BOARD VOTE:

__rvo___ __sk____ __jpi___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Raymond V. O'Connor, Jr.
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060665
SUFFIX
RECON
DATE BOARDED	20020718
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.	131.0000
3.
4.
5.
6.