IN THE CASE OF:			  

		BOARD DATE:  9 SEPTEMBER 2014	  

		DOCKET NUMBER:  AR20130021249 


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, in effect, correction of his records to show he was promoted to the rank/grade of major (MAJ)/O-4.

2.  He states he was selected for promotion to MAJ prior to being medically retired.  He adds that no one could provide documentation to support his promotion list status at the time of his discharge.

3.  He provides:

* Orders D123-05, dated 3 May 2011
* memorandum, subject:  Placement on the Temporary Disability Retired List (TDRL), dated 3 May 2011
* Department of the Army (DA) Boards Results
* memorandum, subject:  Notification of Promotion Status, dated 23 June 2010

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the U.S. Air Force, he was appointed as a Reserve commissioned officer on 16 August 1999.  He was promoted to captain (CPT)/O-3 in the Arkansas Army National Guard (ARARNG) on 10 February 2004.

2.  The DA Boards Results show the applicant was selected for promotion to MAJ on the 2010 Army Promotion List (APL) in the Field Artillery Branch of the ARARNG.

3.  A memorandum from the Deputy Chief of Staff, Personnel, ARARNG, dated 23 June 2010, subject:  Notification of Promotion Status, informed the applicant that a Department of the Reserve Components Selection Board had selected him for promotion.  The memorandum further stated:

   a.  To be selected for promotion he must:  remain in an active status, be medically qualified for retention, meet the weight control standards in Army Regulation 600-9 (The Army Body Composition Program), and otherwise meet the promotion eligibility standards shown in Army Regulation 135-155 (Army National and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other than General Officers).

   b.  As a troop program unit officer, to be promoted, he must be assigned to a duty position as required by Army Regulation 135-155 for his area of concentration.

   c.  His effective date of promotion and date of rank would be the date he was in a duty position as required by Army Regulation 135-155 for his area of concentration, but not earlier than the approval date of the board that selected him for promotion.

   d.  If no position was available to him that permitted his promotion before he reached his maximum time in grade, he must select from the following options:

* accept promotion with transfer of assignment to the Individual Ready Reserve (IRR)
* request a delay in promotion as permitted by Army Regulation 135-155
* decline the promotion
* if no option was selected by him upon reaching his maximum time in grade date, he would be promoted and involuntarily transferred to the IRR

4.  U.S. Army Physical Disability Agency Orders D123-05, dated 3 May 2011, show the applicant was released from duty because of physical disability and placed on the TDRL effective 7 June 2011.  His retired grade of rank was listed as O-3.


5.  Title 10, U.S. Code, section 1372 (Grade on Retirement Physical Disability, Members of the Armed Forces), 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 section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, 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 TDRL 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.

6.  A memorandum from the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 27 January 2009, subject:  Grade of Officers When Retiring or Separating for Physical Disability, prescribes Army grade-determination policy for officers who, because of physical disability, are separated retired, or retired and placed on the TDRL.  Paragraph 7 states, as a point of clarification, the policy implements the grade-determination authority of Title 10 U.S. Code, sections 1212 and 1372, but it does not authorize the actual promotion of officers covered by the policy who are retired or separated because of physical disability.  Therefore, promotion orders will not be published for these officers.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was retired because of temporary physical disability on 7 June 2011 and he was placed on the TDRL in the grade/rank of CPT/O-3.


2.  The evidence further shows that prior to being placed on the TDRL he was selected by the DA 2010 APL MAJ Board for promotion to MAJ/O-4.  He was notified of his promotion status on 23 June 2010.  It is presumed that had he not been going through the physical disability process at the time of selection he would have been promoted to MAJ.

3.  Orders D123-05, dated 3 May 2011, show he was retired due to temporary disability in the rank/pay grade of CPT/O-3 with an effective date of 7 June 2011.

4.  Title 10, U.S. Code, section 1372, states any member of the Armed Forces who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the permanent regular grade to which he/she would have been promoted had it had not been for the physical disability for which he/she is retired.  Therefore, he is entitled to be placed on the TDRL in the rank of MAJ effective 7 June 2011 (his retirement date).  He is also entitled to any back retired pay due as a result of this correction.

5.  Although not requested, but as clarification, he is not entitled to have promotion orders published to show he was promoted to the rank/grade of MAJ/O-4 as stated in Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs guidance issued on 27 January 2009.

BOARD VOTE:

____X___  ____X___  ____X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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.  amending Orders D123-05, dated 3 May 2011, to show he was placed on the TDRL effective 7 June 2011 in the rank/grade of MAJ/O-4; and



	b.  providing him all back retired pay due as a result of this correction.



      ___________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)                                         AR20130021249



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ABCMR Record of Proceedings (cont)                                         AR20130021249



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