IN THE CASE OF: 

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20120003006 


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 correction of his records to show he was promoted to staff sergeant (SSG)/E-6 effective 15 April 2003.

2.  The applicant states:

	a.  he was eligible for promotion on 15 April 2003, when he was transferred to a SSG position.  He was aware that the promotion was conditional, but he was never afforded the opportunity to meet the conditions.  He was recovering from injuries and illnesses that occurred in the line of duty while he was serving in Bosnia.

	b.  eleven months after being assigned to the SSG position he was transferred to the temporary disability retired list (TDRL).  His unit had ample time to have afforded him the opportunity to at least attend the 1st phase of the Basic Noncommissioned Officer Course (BNCOC).

	c.  he reviewed the active Army and National Guard regulations and could not find any reason a Solider should be discriminated against because of injuries or illness incurred in the line of duty.


3.  The applicant provides copies of his:

* Noncommissioned Officer Evaluation Report ending October 2001
* 5 April 2002 active duty orders with amendment 
* page 8 of the 2002 (E6) Enlisted Promotion Consideration List showing his name
* 17 April 2003 transfer orders
*  DA Form 4187 (Personnel Action) showing his promotion to SSG
* orders placing him on the TDRL
* orders removing him from the TDRL and directing permanent retirement  

CONSIDERATION OF EVIDENCE:

1.  The applicant was permanently retired due to disability as a sergeant (SGT)/E-5.  His rank was changed to staff sergeant (SSG)/E-6, effective 
1 January 2004, by ABCMR Docket Number AR20110015400 dated 2 February 2012.

2.  On 5 April 2002, he was ordered to active duty with a reporting date of 
29 March 2002 for 179 days.  The purpose was "Active Duty Medical Extension (ADME)."  The period was later amended to 959 days (end date 12 November 2004.

3.  His name is listed on the 2002 (E6) Enlisted Promotion Consideration List, dated 1 August 2002.

4.  On 17 April 2003, he was transferred to a SSG position effective 15 April 2003.

5.  A 1 January 2004 DA Form 4187 announced his promotion to SSG effective 1 January 2004.  The Additional Instructions state "Promotion is not valid and will not be effective if the Soldier is not in a promotable status on the effective date of the promotion."

6.  On 27 February 2004, he was placed on the TDRL effective 29 February 2004.

7.  The 24 September 2008 PEB proceedings show he was found to be physically unfit and recommended a combined rating of 70%.  He concurred with the findings.

8.  On 21 October 2008, he was removed from the TDRL and permanently retired with 70% disability as a SGT.
9.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau.  The opinion recommended partial approval and stated:

	a.  The applicant was placed on ADME orders and sent to a Medical Treatment Facility at Fort Stewart, GA.  Because of the nature of his medical condition he was evaluated under the Physical Disability Evaluation System and retired from the service.  While the applicant was receiving medical treatment, he was selected for promotion to SSG on the 2002 Georgia Army National Guard (GAARNG) promotion board.  He was then transferred to a SSG position.  A DA Form 4187 issued by his GAARNG unit shows he was promoted to SSG effective 1 January 2004.  On 28 February 2004, the applicant was placed on the TDRL and retired at the grade of E-5.

	b.   Although he was selected for promotion and placed in an E-6 position on 15 April 2003, he did not qualify for promotion due to not completing phase one of BNCOC.  The applicant did not complete this education requirement because of his disability; therefore, he is entitled to be promoted to the grade of E-6 1 day prior to being placed on the TDRL.  In accordance with the U.S. Code (USC), section 1372(3), "Unless entitled to a higher grade under some other provision of law, any member of an armed force who is retired for physical disability under section 2001 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:  ...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 physical examination."

	c.  Furthermore, Army Regulation 600-8-19, paragraph 1-20(c) states "Per the provisions of 10 USC 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."

10.  On 16 February 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to staff sergeant (SSG)/E-6 effective 15 April 2003.  He was eligible for promotion on 15 April 2003.  He was aware promotion was conditional but he was never afforded the opportunity to meet the conditions because he was recovering from injuries and illnesses that occurred in the line of duty while he was serving in Bosnia.

2.  The evidence of records shows:

	a.   the applicant's name was on the 2002 (E6) Promotion Consideration List dated 1 August 2002.

	b.  He was transferred into a SSG position effective 15 April 2003.

	c.  The additional instructions in the DA Form 4187 announcing his promotion to SSG stated the promotion was not valid if he was not in a promotable status.

3.  The applicant was not qualified for promotion because he had not completed Phase One of BNCOC.  He was unable to complete the conditional requirement due to a medical condition.  The medical condition led to his disability retirement. 

4.  Contrary to the applicant's assertions, his non-completion of BNCOC was not the result of his unit's failure to order him to the course.  It was simply a by-product of his medical/physical situation.  He was, after all, on active duty for medical treatment.

5.  By law and regulation, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Furthermore, the Soldier will be promoted to the designated grade effective the day before placement on the Retired List.  In his case, not only was he on a promotion standing list, he was also issued a promotion order prior to his retirement.

6.  A previous ABCMR docket directed his rank/grade be changed on his DD Form 214 to SSG/E-6.

7.  Therefore, 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 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)                                         AR20100015375



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ABCMR Record of Proceedings (cont)                                         AR20120003006



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