IN THE CASE OF:  

		BOARD DATE:  19 February 2014

		DOCKET NUMBER:  AR20130007325 


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 lieutenant colonel (LTC)/O-5, effective 16 November 2010, and advancement on the Retired List to the rank/grade of LTC/O-5, effective 17 November 2010.

2.  The applicant states he believes it is the policy of the Army to promote Soldiers upon retirement to the grade achieved, if the Soldier is on a promotion list at the time of retirement.  The board that considered him for promotion adjourned long before he was medically retired from the Army.  He was selected based on merit and retired based on medical issues which were beyond his control.  If it were not for the medical issues he would still be serving and would have been promoted to LTC.  He simply wishes to be recognized for the level of achievement he attained. 

3.  The applicant provides:

* a letter to his Member of Congress
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 251-0001, issued by the Soldier Readiness Center, Joint Base Lewis – McChord, WA on 8 September 2010
* an article from the Army Times, dated 22 January 2011, titled "Reserve, Guard lt. col. promotion list released"
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20100018522, dated 17 March 2011, with supporting case documents
* ABCMR Docket Number AR20110021209, dated 10 April 2012, with supporting case documents
CONSIDERATION OF EVIDENCE:
1.  On 16 July 1986, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1.

2.  On 17 July 1986, he was appointed as an officer in the New York Army National Guard (NYARNG).  

3.  On 15 November 1987, he transferred to the U.S Army Reserve (USAR).  He served in numerous assignments of increased responsibility, and on 30 June 2004, he was promoted to the rank/grade of major (MAJ)/O-4.

4.  On 12 August 2010, an informal physical evaluation board (PEB) convened at Fort Lewis, WA, to consider his physical fitness for further military service.  The board determined his medical conditions prevented him from the reasonable performance of the duties required of his grade and specialty and determined he was physically unfit.  The PEB recommended he be permanently retired by reason of physical disability.  He concurred with the PEB's finding and recommendation.

5.  On 18 August 2010, the PEB's findings and recommendation were approved.

6.  Orders 2521-0001, issued by the Soldier Readiness Center, Joint Base   Lewis – McChord, WA on 8 September 2010, ordered his retirement from the Army, effective 16 November 2010, and his placement on the Retired List, in the rank/grade of MAJ/O-4, effective 17 November 2010.

7.  On 16 November 2010, he was honorably retired in the rank/grade of  MAJ/O-4, by reason of permanent disability.  He was placed on the Retired List the following day.  

8.  The Fiscal Year (FY) 2011 Reserve Component (RC) LTC Army Promotion List (APL) promotion selection board convened on 7 September 2011 and adjourned on 22 September 2011.  The board report was approved by the Principle Deputy Under Secretary of Defense (Personnel and Readiness) (PDUSD (P&R)) on 27 December 2011 and the board scroll was signed by the Secretary of Defense on 3 January 2012. 

9.  The applicant provides an article from the Army Times, titled "Reserve, Guard lt. col. promotion list released."  This list was published by Army Times on         22 January 2011 and appears to identify him as one of many recommended for promotion by the FY11 RC LTC APL promotion selection board.

10.  Department of the Army, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs (M&RA)) memorandum, dated 27 January 2009, subject: Grade of Officers When Retiring or Separating for Physical Disability, provides that officers recommended for promotion by Title 10 promotion boards, special selection boards, or position vacancy boards, will be retired or separated at their promotion list grade, if being retired or separated because of physical disability, provided their name appears on an approved promotion list (emphasis added), and that list is confirmed by the Senate (if required), prior to their retirement or separation due to physical disability. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to LTC because members retired for physical disability are entitled to the Reserve grade to which they would have been promoted, had it not been for the physical disability for which they are retired.

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 because the promotion board list had not yet been approved on the date he was retired.

3.  Promotion lists must be approved prior to the date of retirement or separation because of physical disability.  The FY11 RC LTC APL was not approved by the PDUSD (P&R) until 27 December 2011, over a year after his date of retirement.  Even if an administrative error occurred and his name was inadvertently not removed from the APL prior to it being sent to the PDUSD (P&R) for approval, he was no longer eligible for promotion to LTC after the date of his retirement. 

4.  He was correctly retired on 16 November 2010 in the rank of MAJ, 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)                                         AR20130007325



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