IN THE CASE OF:  

		BOARD DATE:  2 July 2014

		DOCKET NUMBER:  AR20140003822 


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, promotion to the rank/grade of colonel (COL)/O-6 and advancement on the Retired List to the rank/grade of COL/O-6, both actions effective 13 June 2012.

2.  The applicant states in accordance with Title 10, U.S. Code, Subtitle A, Part II, Chapter 69, Section 1372 (10 USC § 1372, Grade on retirement for physical disability: members of armed forces), a member of the Armed Forces who is retired for physical disability will be paid at the grade to which he/she would have been promoted had it not been for the physical disability for which he/she was retired.

3.  The applicant provides:

* a copy of 10 USC § 1372
* an email from the U.S. Army Human Resources Command (HRC) that confirms changes she made to her My Board File, submitted for the Fiscal Year 2012 (FY12) COL Army Medical Department (AMEDD) Non-Active Guard Reserve (AGR) AN (Army Nurse) PSB (Promotion Selection Board)

CONSIDERATION OF EVIDENCE:
1.  On 21 March 1990, the applicant was appointed as a Reserve commissioned officer of the Army in the Army Nurse Corps (AN).

2.  On 20 August 2008, she was promoted to the rank/grade of lieutenant colonel (LTC)/O-5.

3.  On 20 April 2012, an informal physical evaluation board (PEB) convened at the National Capital Region PEB in Arlington, VA, to consider her physical fitness for further military service.  The PEB recommended she be permanently retired by reason of physical disability.  She concurred with the PEB's finding and recommendation.

4.  On 11 May 2012, the PEB's findings and recommendation were approved.

5.  On 13 June 2012, she was honorably retired in the rank/grade of LTC/O-5, by reason of permanent disability.  She was placed on the Retired List the following day in the rank/grade of LTC/O-5.

6.  On 7 April 2014, the Chief, Promotions Branch, HRC, Fort Knox, KY, responded by letter to an inquiry from her Member of Congress, regarding her promotion standing as related to her involuntary medical discharge [retirement].
In this letter to her Member of Congress, the HRC official stated:

* she was considered by the FY12 Reserve Component (RC), COL, AMEDD, PSB that convened on 7 May 2012 and recessed on 16 May 2012
* the results of this board were approved on 13 August 2012, two months after her retirement date
* she was not recommended for promotion by this board

7.  On 15 April 2014, the applicant was provided a copy of the HRC letter to her Member of Congress, for comment and/or possible rebuttal.  

8.  On 13 May 2014, the applicant responded to the HRC letter.  In her response, she again cites 10 USC § 1372 as the governing law that entitles her to promotion to COL, and reiterates her belief that she would have been selected for promotion had it not been for the disability that forced her retirement.

9.  10 USC § 1372 provides 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, or whose name is placed on the temporary disability retired list, is entitled to the grade equivalent to the highest of the following: 

   a. The grade or rank in which he/she is serving on the date when his/her name is placed on the temporary disability retired list or, if his/her name was not carried on that list, on the date when he/she is retired. 
   b. The highest temporary grade or rank in which he/she served satisfactorily, as determined by the Secretary of the armed force from which he/she is retired. 

   c. The permanent regular or reserve grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of a physical examination. 

   d. The temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she 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. 

10.  A memorandum from the Department of the Army, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs (M&RA)), Washington, DC, dated 27 January 2009, subject: Grade of Officers When Retiring or Separating for Physical Disability, provides that officers recommended for promotion (emphasis added) 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 she should be promoted to COL 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.  She was considered by the FY12 RC, COL, AMEDD PSB, which convened on 7 May 2012 and recessed on 16 May 2012; however, she was not recommended for promotion by this board.

3.  10 USC § 1372 provides that a member of the Armed Forces who is retired for physical disability will be paid at the grade to which he/she would have been promoted had it not been for the physical disability for which he/she was retired.  This provision of law does not apply to the applicant, since she was not recommended for promotion, and consequently she was not in a promotable status at the time of her retirement.

4.  She was correctly retired on 13 June 2012 in the rank of LTC, which is the rank she held at the time of her retirement.

5.  In view of the foregoing, she 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)                                         AR20140003822



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