BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130000923


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired by reason of disability in the rank/grade of captain (CPT)/O-3 versus first lieutenant (1LT)/O-2.

2.  The applicant states:

* he was medically retired at the incorrect rank and pay grade
* his current pay grade is O-2 and he is requesting to be advanced on the Retired List to pay grade O-3
* he was selected by a Department of the Army (DA) promotion board for placement on the Army Promotion List (APL) for CPT
* the Texas Army National Guard (TXARNG) had almost 3 years, from the date the DA board convened to the date he was medically retired, to find him an O-3 position so he could have been promoted
* he has no reason to request this records correction, other than to receive the honor of a promotion he earned through exceptionally hard work and dedication
* this correction serves no financial gain or purpose as all decisions and actions regarding his medical boards have been completed

3.  The applicant provides:

* a memorandum from the U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 29 March 2010, subject: Promotion List for CPT, APL, U.S. Army Reserve (USAR) Components
* an extract from the National Guard Bureau (NGB) website that contains a partial roster of selectees from the 2010 APL CPT board, of which the applicant's name is included 
* a copy of his Department of Veterans Affairs (VA) Rating Decision, dated 10 January 2012
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated      27 June 2012
* Orders 252-1009, issued by the TXARNG on 8 September 2012
* Special Orders Number 325 AR, issued by NGB on 11 September 2012
* NGB Form 22 (Report of Separation and Record of Service), dated         17 September 2012   

CONSIDERATION OF EVIDENCE:

1.  On 13 September 2003, following prior enlisted service in the TXARNG, the applicant was appointed as a second lieutenant (2LT) in the ARNG, in the infantry basic branch.  Following his appointment, he was assigned to a unit of the TXARNG.  

2.  On 13 September 2005, he was promoted to the rank of 1LT in the TXARNG.

3.  He served on active duty from 1 October 2007 through 30 September 2010, during which time he deployed to Kosovo; however, his exact dates of service in Kosovo are unknown.

4.  It appears at some stage he entered the Army Physical Disability Evaluation System (PDES).  On 27 June 2012, an informal PEB convened and found he suffered from the following medical conditions:

* post-traumatic stress disorder
* cognitive disorder secondary to anoxic brain injury (rated by the VA as traumatic brain injury)
* neuralgia of unknown etiology involving the left thoracic, lumbar, and posterior lower extremity regions (rated as sciatica of the right lower extremity)
* sciatica of the left lower extremity as a residual of hepatic neuralgia 

5.  The board determined these medical conditions prevented him from the reasonable performance of the duties required of his grade and specialty and determined he was physically unfit. 

6.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and granted a 100-percent (%) combined disability rating.  The PEB recommended he be permanently retired by reason of physical disability.  He concurred with the PEB's finding and recommendation.

7.  Orders D223-09, issued by the U.S. Army Physical Disability Agency (USAPDA), Arlington, VA, on 10 August 2012, ordered his release from duty because of physical disability and placement on the Retired List in his retired rank/grade of 1LT/O-2, effective 17 September 2012.  The standard name line on these orders listed his rank as "1LT."

8.  Orders 252-1009, issued by the TXARNG on 8 September 2012, ordered his honorable separation from the TXARNG and transfer to the Retired Reserve.

9.  On 17 September 2012, he was honorably retired by reason of physical disability.  

10.  He provides an extract from the NGB website that contains a partial roster of selectees from the 2010 APL CPT board, of which his name is included.   

11.  On 11 March 2013, in the processing of this case, NGB provided an advisory opinion, in which an official recommended approval of the applicant's request for relief, stating:

	a.  NGB Policy Memorandum #04-0025, dated 1 September 2004, provides that ARNG officers recommended for promotion to the ranks of CPT through lieutenant colonel (LTC), mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and who are on an approved mandatory selection board promotion list who meet their maximum time in grade (TIG), will be promoted without regard to position vacancy unless the officer has voluntarily delayed or declined his or her promotion.

	b.  The same memorandum further provides that "in the event the State either does not desire to promote the officer or does not have a vacant position at the higher grade against which to promote the officer, the officer will sign a statement acknowledging that he or she is being promoted due to reaching maximum TIG and that if the officer does not occupy a position at the higher grade within          6 months after redeployment the officer will be involuntarily transferred to the Individual Ready Reserve (IRR)."
	c.  1LT [Applicant] was selected by a DA Mandatory Promotion Board for promotion to CPT, met the maximum TIG as a 1LT, and was in a mobilized status under Title 10.

	d.  Upon his return from deployment, 1LT [Applicant] was separated for medical reasons due to injuries incurred while mobilized, transferred to the Retired Reserve, and placed on the Retired List.

	e.  In accordance with the DA memorandum, subject: Grade of Officers When Retiring or Separating for Physical Disability, dated 27 January 2009, NGB recommends the applicant receive full administrative relief in this case.

12.  On 13 March 2013, the applicant was provided with a copy of this advisory opinion for his information, review, and possible rebuttal; however, he did not respond. 

13.  Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the Armed Forces), states 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, 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 grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired
* 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 a physical examination
* the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the USAR.  It also covers promotion eligibility and qualification 

requirements, board schedules and procedures, and procedures on processing selection board recommendations.  Table 2-1 (TIG Requirements Commissioned Officers, other than Commissioned Warrant Officers) states the maximum TIG for promotion from 1LT to CPT is 5 years. 

DISCUSSION AND CONCLUSIONS:

1.  By law, officers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  

2.  The evidence of record shows he was on a DA recommended list for promotion to the rank of CPT at the time of his disability processing and retirement.  

3.  In accordance with Army Regulation 135-155, Table 2-1, the applicant met the maximum TIG for 1LT on 13 September 2010.  Therefore, he is entitled to correction of his records to show he was promoted to CPT/O-3, with an effective date and date of rank of 13 September 2010.  

4.  Additionally, he is entitled to retroactive pay and allowances from the date of his promotion to CPT, 13 September 2010, to the date of his retirement, and to correction of his records to show he was retired in the rank/grade of CPT/O-3.

BOARD VOTE:

__x___  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Promoting him to the rank/grade of CPT/O-3 effective 13 September 2010;

	b.  Paying him all back pay and allowance resulting from this promotion; and
	c.  Amending Orders D223-09, issued by the USAPDA on 10 August 2012, to show he was retired in the rank/grade of CPT/O-3.



      ___________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)                                         AR20130000310



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ABCMR Record of Proceedings (cont)                                         AR20130000923



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