IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20110023381 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests promotion to the rank/grade of colonel (COL)/O-6 effective 15 September 2010, the date he was placed on the Retired List. 

2.  The applicant states he was selected for promotion to O-6 and was waiting on Senate approval when he was retired due to physical disability.  He was stationed at Fort Benning, GA, and had about 30 days to concur or not concur with the disability findings of the Physical Evaluation Board (PEB).  He also had 70 days of leave and was told by Retirement Services to go ahead and retire because once the Senate confirmed the promotion list he would be given his COL rank retroactively.  He attempted to get promoted after the list was posted but was unsuccessful.  If he had known this, he would not have retired prior to being promoted.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Seven pages of a Presidential Nominations 111th Congress (2009-2010) list
* A printout titled Tour Leave Record
* An out-processing check list
* Orders
* Two memoranda
* DA Form 647-1 (Personnel Register)



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was a U.S. Army Reserve (USAR) lieutenant colonel (LTC) ordered to active duty on 1 August 2005 in support of Operation Enduring Freedom.  He was assigned to the 1111th Mobilization Support Battalion, Birmingham, AL.

2.  He was considered and recommended for promotion by the fiscal year (FY) 2010 COL Army Promotion List (APL) promotion selection board and his name was placed on the recommended for promotion list awaiting Senate confirmation.  

3.  His record contains six DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 8 April 2010, wherein they show he was treated as an outpatient at Martin Army Community Hospital, Fort Benning, GA, as follows on:

* 11 September 2009, for knee pain caused by a non-traumatic tendon rupture of the left knee patella
* 6 October 2009, for hearing loss in the left ear
* 8 December 2009, for low back pain diagnosed as lumbago
* 8 December 2009, for wrist pain diagnosed as bilateral carpal tunnel syndrome
* 17 February 2010, for shoulder pain diagnosed as left shoulder impingement
* 11 March 2010, for neck pain diagnosed as cervicalgia

4.  On 12 April 2010, all of the above conditions were determined to have occurred in the line of duty.

5.  On an unknown date, a medical evaluation board (MEB) convened and diagnosed him with several unfitting conditions.  The MEB recommended the applicant be referred to a PEB.

6.  On 10 August 2010, an informal PEB convened at Fort Sam Houston, TX, and confirmed his unfitting disabilities.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to the following conditions and recommended disability percentage:

* Major depressive disorder, 70 percent
* Intermittent recurrent vertigo, 30 percent 
* Left knee status post repair of partial patellar tendon rupture, 10 percent
* Chronic tear of the anterior talofibular ligament with chronic left ankle pain, 10 percent
* Right ankle osteochrondritis dissecans, 10 percent

7.  He was rated under the Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) codes 9434, 6204, 5260/5024, 5271/5010, and 5271/5010.  The PEB recommended he be retired due to permanent disability with a combined disability rating of 90 percent.  On 23 August 2010, after being counseled on his rights, he concurred with the PEB findings and waived his right to a formal hearing.

8.  On 15 September 2010, he was honorably retired in the rank of LTC by reason of permanent disability and placed on the Retired List in the rank of LTC.  He completed 5 years, 1 month, and 15 days of active duty service during this period of service, had 1 year, 7 months, and 2 days of prior active service, and 20 years, 7 months, and 21 days of prior inactive service.

9.  The applicant provides a Presidential Nominations List wherein it shows 266 names were submitted for Senate confirmation on 17 November 2010, for appointment to COL in the USAR.  The list provided by the applicant includes his name.  On 22 December 2010, the list was confirmed by the Senate. 

10.  In the processing of this case an advisory opinion, dated 12 March 2012, was obtained from the Chief, Officer Promotions, U.S. Army Human Resources Command.  The advisory official recommended denial of the applicant's request for promotion to COL and opined the following:

	a.  The applicant was considered and recommended for promotion to COL by the FY2010 APL promotion selection board; however, he retired from military service on 15 September 2010 and was subsequently removed from the list.  Title 10 U.S. Code (USC), section 1430(d) states that under regulations prescribed by the Secretary concerned, if an officer on the Reserve active-status list (RASL) is discharged, dropped from the rolls, or transferred to a retired status after having been recommended for promotion to a higher grade, or having been found qualified for Federal recognition in the higher grade under title 32, but before being promoted, the officer's name shall be administratively removed from the list of officers recommended for promotion by a selection board.

	b.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-1c, also states an officer who is on a promotion list and is removed from the RASL before the effective date of the promotion will not be promoted.  A subsequent return to the RASL does not warrant a return to the promotion list.
	c.  If his retirement is vacated, his earliest promotion eligibility would be the date of the promotion board's confirmation, 22 December 2010.  However, promotion would be contingent upon him either transitioning to the Individual Ready Reserve or if he chose to remain in the Individual Mobilization Augmentation Program, the effective date of promotion to COL would be the date he was placed in an authorized higher position, provided it was no earlier than the confirmation date of his respective board.

11.  In a response to the advisory opinion received on 2 June 2012, the applicant stated he believes that Title 10 USC, section 1372, applies to his case and therefore he should receive his O-6 rank.  Section 1372 states, in pertinent part, 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 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 he is retired
* The highest temporary rank/grade in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired
* The 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

12.  Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs memorandum, dated 27 January 2009, subject:  Grade of Officers When Retiring of Separating for Physiacl Disability, states officers recommended by Title 10 Promotion Boards, Special Selection Boards, or Position Vacancy boards must be on an approved promotion list and confirmed by the Senate, if required, prior to the retirement or separation because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to COL because regulatory guidance states a member retired for physical disability is entitled to the 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.

2.  The applicant’s contention is partially correct; however, in his case he was not entitled to the Reserve grade to which he would have been promoted but for his disability separation because the Senate had not yet confirmed his promotion by time he was separated.  
3.  Promotion to the rank of COL requires confirmation by the Senate prior to the date of retirement or separation because of physical disability.  The APL was not confirmed by the Senate until 22 December 2010, over 3 months after his retirement.  Even if an administrative error occurred and his name was inadvertently not removed from the APL prior to being sent to the Senate, he was no longer eligible for promotion to COL after the date of his retirement. 

4.  He was correctly retired on 15 September 2010 in the rank of LTC which is the rank he held at the time of his retirement.

5.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_____________
                 CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20110023381





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ABCMR Record of Proceedings (cont)                                         AR20110023381



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