IN THE CASE OF:	   

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130018734 


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 retired in the rank/grade of major (MAJ)/O-4.

2.  He states he was medically retired due to injuries sustained while serving on duty.  He was in the window for promotion to MAJ and had completed the educational requirements to be eligible for promotion.  By regulation, he should have been promoted to the next higher grade because his career was cut short due to medical retirement.  He realizes this correction will not affect his pay and allowances.

3.  He provides excerpts from Army Regulation 600-8-29 (Officer Promotions); Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations); and Title 10, U.S. Code, section 1372 (10 USC 1372).

CONSIDERATION OF EVIDENCE:

1.  On 11 January 2000, the applicant took the oath of office as a Reserve commissioned officer in the rank/grade of second lieutenant/O-1.

2.  Effective 6 May 2008, he was promoted to captain (CPT)/O-3.

3.  On 13 September 2010, the U.S. Army Human Resources Command issued Orders A-09-025103.  The orders, as amended, ordered him to active duty for a period of 537 days to enter the Physical Disability Evaluation System.

4.  On 17 September 2011, the applicant was retired by reason of permanent disability.  The orders effecting his retirement show his retired grade as CPT and his date of rank as 6 May 2008.  The orders cite 10 USC 1372 and 1201, respectively, as the statutes authorizing retirement and "other eligible laws."

5.  His records are void of documentation showing he had been considered and selected for promotion to MAJ prior to his retirement.

6.  On 27 December 2013, the Chief, Officer Promotions Management, U.S. Army Human Resources Command, provided an advisory opinion.  The advisory official states his office reviewed the applicant's promotion board history and determined he was not eligible for promotion at the time of his medical retirement.  The advisory official states:

	a.  An Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 27 January 2009, subject:  Grade of Officers when Retiring or Separating for Physical Disability, defines the policy for determining the grade of officers retiring or separating for physical disability.  The policy authorizes an officer separated for physical disability pursuant to 10 USC 1203 or 1206 to have his or her disability severance pay calculated in the next higher grade provided the respective officer was on either an approved promotion list or promotion nomination scroll.  (The advisory official did not address the policy applicable to officers retired for physical disability.)

	b.  At the time the applicant retired, he was not in a promotable status and he was not scheduled to be seen by his next promotion board until 27 November 2012 as a below-the-zone candidate for promotion.

7.  On 6 February 2014, the applicant responded to the advisory opinion.  He stated:

	a.  In accordance with Army Regulation 600-8-29, he was only required to have a minimum of 3 years of time in grade (TIG) as a CPT to be eligible for promotion, which he had; 

	b.  Army Regulation 600-8-29 renders the question of his promotion eligibility moot in that statutory TIG requirements for officer positions are waived by operation of law in some automatic grade determinations for physical disability separations or retirements.

	c.  Under 10 USC 1372, as an officer retired for physical disability he is entitled to the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he was retired.

8.  10 USC 1372 states that 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 10 USC 1201 is entitled to the grade equivalent to the highest of the following:

	a.  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;

	b.  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;

	c.  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; or

	d.  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.

9.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  TIG is one element in determining an officer's eligibility to be considered for promotion; however, the regulation contains no provisions authorizing promotion of an officer based solely on TIG.  The regulation contains no provisions for promoting an officer to MAJ without the officer having first been considered by the appropriate promotion board.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the U.S. Army Reserve (USAR).  It states mandatory selection boards will convene each year to consider USAR officers on the Reserve Active Status List for promotion to CPT through lieutenant colonel.  First consideration for promotion will occur well in advance of the date the officer will complete the TIG requirements.  The regulation states the TIG requirements for promotion to MAJ are a minimum of 4 and a maximum of 7 years in the next lower grade.

11.  An Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 27 January 2009, subject:  Grade of Officers when Retiring or Separating for Physical Disability, defines the policy for determining the grade of officers retiring or separating for physical disability.  It states, in part, that in accordance with 10 USC 1372, officers retired because of physical disability who would otherwise have been promoted when they had attained their maximum TIG or reached their promotion sequence number, as applicable, and are otherwise eligible will be retired in the next higher grade.  The policy states the officer must be on an approved promotion list prior to the effective date of retirement because of physical disability.

DISCUSSION AND CONCLUSIONS:

When he retired for physical disability, the applicant was not on an approved promotion list and he had not reached his maximum TIG as a CPT.  Although he believes otherwise, there is no statutory or regulatory basis for correcting his records to show he retired in the rank of MAJ.

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)                                         AR20130018734



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ABCMR Record of Proceedings (cont)                                         AR20130018734



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