IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130015834 


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 reconsideration of his earlier request for promotion to the rank/grade of colonel (COL)/O-6 effective 15 September 2010, the date he was placed on the Retired List.

2.  He states he is in receipt of his letter, date 31 July 2012 regarding his promotion.  The Office of the Judge Advocate General (OTJAG) has confirmed that Title 10, U.S. Code (USC), section 1372 does not require actual promotion to be retired at the "promotion list" grade.  Therefore, he should receive his O-6 rank.  

3.  He provides a document from the U.S. Army Physical Disability Agency (USAPDA) regarding grade at which retired for severance pay paid:  officers.  He indicated he attached a copy of his retirement orders; however, this document is not available.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110023381 on 26 July 2012.

2.  The applicant provided new evidence that will be considered by the Board.  

3.  He provided a document from the USAPDA regarding the grade at which retired or severance pay is paid to officers.  The document states that officers are retired at promotion list grade without actual promotion and points out:

* OTJAG has confirmed that officer promotion law does not allow for "jumping" sequence number for a "last day promotion:
* OTJAG has confirmed that 10 USC, section 1372 does not required actual promotion to be retired at the "promotion list" grade
* Implementing guidance:  Memo, DASA-PO, 27 January 2009, subject:  Grade of Officers When Retiring or Separating for Physical Disability
* Memorandum posted on USAPDA website - main page

4.  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.

5.  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.  

6.  On an unknown date, a medical evaluation board (MEB) convened and diagnosed him with several unfitting conditions (MEB proceedings are not present in his records).  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).

7.  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

8.  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.

9.  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.

10.  Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs memorandum, dated 27 January 2009, subject:  Grade of Officers When Retiring or Separating for Physical 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/O-6 based on the regulatory guidance from OTJAG indicating it does not require actual promotion to be retired at the "promotion list" grade.  

2.  The Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs memorandum, dated 27 January 2009, 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.

3.  He 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.  The APL was not confirmed by the Senate until 22 December 2010, over 3 months after his retirement.  

4.  Since his promotion to COL was not confirmed prior to his retirement on 15 September 2010, his name was administratively removed from the list of officers.  Therefore, he was no longer eligible for promotion to COL after the date of his retirement.  

5.  Therefore, 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.  
6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110023381, dated 26 July 2012.




      _______ _   _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)                                         AR20130015834





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ABCMR Record of Proceedings (cont)                                         AR20130015834



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