IN THE CASE OF:  	  

		BOARD DATE:  12 November 2014	  

		DOCKET NUMBER:  AR20140005375 


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 reinstatement of her previous promotion to the rank/grade of master sergeant (MSG)/E-8 for retirement purposes.

2.  The applicant states:

   a.  Her promotion order to E-8 was rescinded due to the excessive length of time in the Integrated Disability Evaluation System (IDES).  This extended delay in making a determination resulted in her name being removed from the promotion list for E-8.

   b.  The IDES process took over 1 year and 6 months (began in May 2012 and was finalized in November 2013).  If the IDES process had worked efficiently and in a timely manner, it would not have jeopardized her promotion eligibility.

   c.  Due to a service-connected injury from her deployment to Afghanistan, she went through the IDES process and this lasted from May 2012 to November 2013.  The medical board concluded that she was unfit to continue her military service.  During this 18-month process she suffered from degraded performance such as being unable to take an Army Physical Fitness Test (APFT), unable to complete a weapons qualification, and unable to perform field duty or attend Annual Training due to the military physical profile she was given.  She has been medically compliant during this entire process.

   d.  During this same time period (January-December 2013), the Nebraska Army National Guard (NEARNG) conducted a Qualitative Retention Board (QRB).  She was evaluated for her performance for the year of 2013 which was degraded due to her ongoing medical profile and condition and the result was that she was non-retained in the ARNG.  This administrative action resulted in her name being removed from the promotion list in August 2013.  When the IDES process concluded in November 2013, the Department of the Army promoted her to E-8.  All documentation at that time showed that she had been on the promotion list since 1 January 2013.

   e.  She feels as if she is being penalized in more than one way.  Her military service resulted in permanent injuries that have degraded over time.  These injuries then resulted in the determination that she is unfit to continue her military service as evidenced by the QRB's decision.  This decision resulted in her name being removed from the promotion list of which she had been on since at least 2008.  The promotion was then rescinded as a result of the QRB decision.

   f.  Her name was removed in August 2013 and the promotion was to take effect in November 2013.  To summarize, she has had an outstanding career, became injured due to deployment, and she is now being unfairly denied a promotion and any monetary benefit due to these injuries caused by her military service.  She feels the reserve component Soldiers are at a disadvantage in this process.  It takes much longer for them to get through this process than it does for active duty Soldiers.  The goal of the Army is to complete the IDES process in 305 days.  It took 502 days for them to complete this process for her.  If they had met the goal of 305 days her name would not have been taken off of the promotion list and she would have acquired the promotion to E-8, but it took an extra 200 days for her process to be completed.

   g.  She has enclosed documents that address that she is in good standing with reference to her service with the ARNG.  Of the deficiencies noted in 2012, the statement "Lacking demonstrated potential" was in reference to the fact that there was no upward mobility within her military occupational specialty (MOS).  She was at the highest rank within her MOS that the state offered.  The deficiency noted in 2008 stated "APFT and MOS Qualified (MOSQ))."  This was a result of inaccurate administrative documentation placing her in a paragraph/line number of a position she did not hold, therefore showing that she was not MOS qualified when in fact she was.  The APFT issue was a result of lost APFT documentation after her deployment.  The APFT had been completed and passed within the required time frame as evidenced by her APFT record, which is attached.




3.  The applicant provides copies of the following:

* five Selection of Retention under Army Regulation 135-205 (Army National Guard and Army Reserve – Enlisted Personnel Management) memoranda
* Selection of Retention under National Guard Regulation 635-102 memorandum
* Findings of Medical Fitness memorandum
* four DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) Orders Number 151-327 and 345-665
* NEARNG Enlisted Promotion List
* Nonselection for Continued Unit Participation memorandum
* DA Form 5892 (Notes of Explanation for Estimated Disability Compensation)
* Orders Number D298-22
* Orders Number 303-713
* Orders Number D317-22
* Last Weapons Qualification Roster
* APFT History
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NEARNG on 7 March 1980.  She was awarded MOS 68G (patient administration specialist).  She was promoted to pay grade E-7 on 6 November 1996.

2.  She provided copies of the following:

   a.  Four Selection of Retention Under Army Regulation 135-205 memoranda, dated 25 March 2002, 7 March 2006, 31 March 2008, and 16 April 2010, wherein she was advised of her retention in a unit of the ARNG.  The 2008 memorandum also advised that her record contained deficiencies that required her attention before next year's retention process began and those included:  APFT and MOSQ.

   b.  Four DA Forms 2166-8 ending on 31 March 2009, 6 December 2009, 30 September 2010, and 30 September 2011, wherein she received ratings of "Excellent, "Successful," and "Among the Best."  The forms ending on 6 December 2009, 30 September 2010, and 30 September 2011 stated she had passed the APFT.

   c.  A Selection of Retention Under Army Regulation 135-205 memoranda, dated 16 April 2012, wherein she was advised of her retention in a unit of the ARNG.

   d.  A Findings of Medical Fitness memorandum, dated 21 May 2012, wherein she was advised that the NEARNG State Surgeon had re-reviewed her medical records and found her condition of chronic neck pain to be disqualifying for continued service in the ARNG as a result of a service-connected injury/illness.  She was also advised of her right to be referred to the Medical Evaluation Board for a fitness for duty determination and the Physical Evaluation Board (PEB) would make the determination of fitness or unfitness for continued military service.  

   e.  An NEARNG Enlisted Promotion List, dated 1 January 2013, which listed her name as being eligible for promotion to the next higher grade (E-8).

   f.  A Nonselection for Continued Unit Participation memorandum, dated 1 March 2013, wherein she was advised of her nonselection for continued unit participation because of her referral to the Physical Disability Evaluation System (PDES).  If she was found fit for duty per Army Regulation 40-501 (Standards of Medical Fitness) by the PEB, the decision of the QRB would be upheld and she would be discharged at a date to be determined within 90 days of the fitness for duty determination.

   g.  A DA Form 5892 (Notes of Explanation for Estimated Disability Compensation) wherein she highlighted the following:  In accordance with Title 10, U.S. Code (USC), section 1372, the grade at which a Soldier is retired for disability is the highest of current grade, highest grade satisfactorily held, or the grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier is retired.

   h.  Orders Number D298-22, issued by the U.S. Army Physical Disability Agency (USAPDA), on 25 October 2013, placing her on the retired list effective 29 November 2013 in the retired grade of E-8, with a 30 percent disability rating.

   i.  Orders Number 303-713, issued by the NEARNG, on 30 October 2013, honorably discharging her from NEARNG effective 29 November 2013.

   j.  Orders Number D317-22, issued by the USAPDA, on 13 November 2013, amending Orders Number D298-22, dated 25 October 2013, to show her retired grade as E-7.

   k.  A Last Weapons Qualification Roster, dated 24 November 2013, which shows she was qualified for the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) in May 2011.
   
   l.  An APFT History which shows he passed the AFPT on the following dates:
   
* 21 December 2006 
* 20 May 2008
* 17 September 2008
* 1 May 2009
* 2 May 2010
* 22 May 2011

3.  She was released from the NEARNG, in the pay grade E-7, on 29 November 2013, and was transferred to the Retired Reserve.  She was credited with completing 33 years, 8 months, and 23 days of net service.

4.  In a memorandum, dated 2 July 2014, The Adjutant General (TAG), NEARNG, stated:

   a.  There was no regulatory authority in Army Regulation 600-8-19 (Enlisted Promotions) for the NEARNG to promote the applicant.  Recommend the applicant be allowed to retire based on status at time of IDES processing goal of 305 days.  At that time, the applicant had good standing and would have been eligible for promotion to E-8.

   b.  The applicant was not on the standing promotion list at time of retirement.  The applicant did appear on previous promotion lists and would have likely been promoted if the IDES process would have been shortened.  Due to no fault of the applicant, the IDES process took over 500 days to process, during which time the applicant was unable to display or perform basic requirements of the Soldier causing non-selection for retention with removal from the promotion list.

   c.  Numerous regulations and policies to include Army Regulation 600-8-19, paragraph 1-2, and ARNG Policy Memoranda Numbers 13-009, 13-011, and   10-051 support promotion of medically unavailable Soldiers at time of medical retirement.  Unfortunately, all state Soldiers must be in a promotable status.

5.  In an advisory opinion, dated 3 July 2014, the Chief, Personnel Policy Division, NGB, reiterated the applicant's requests.  The NGB official stated:

   a.  The applicant received a memorandum, dated 21 May 2012, from the NEARNG State Surgeon informing her that her injuries disqualified her for continued service in the NEARNG.  Her records were forwarded to Fort Riley, KS, for a fitness for duty determination.  The memorandum stated the PEB at Fort Lewis, WA, would make the final determination for fitness or fitness for continued military service.
   
   b.  That process lasted approximately 502 days.  During that time the NEARNG conducted a QRB and the applicant was nonselected for continued membership as evidenced by a memorandum from TAG, dated 1 March 2013.  According to the NEARNG enlisted promotion list, dated 1 January 2013, she was eligible for promotion.  In accordance with Military Personnel (MILPER) Message Number 13-106, "Soldier pending medical retention decision or medical separation would not be removed from a promotion list until promoted or until after being determined fit for duty and afforded 180 days to retain promotion eligibility."

   c.  On 25 October 2013, the applicant received retirement order D298-22 stating that she was retired for permanent physical disability.  Her retired grade and rank was listed as E-8.  On 13 November she received order D317-22 rescinding her retired grade of E-8 and changed it to the rank of E-7.  According to Army Regulation 600-8-19, paragraph 1-20, per the provisions of Title 10, U.S. Code, section 1972, "Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the date before placement on the retired list."

   d.  The applicant should have been retired at the grade of E-8 and not E-7.  She was eligible for promotion during the time of retirement and according to the foregoing guidance she was authorized to retire at the grade of E-8.  Therefore, the recommendation is for approval of that request.  The NGB, Enlisted Branch, concurred with the recommendation.

6.  The advisory opinion was provided to the applicant on 9 July 2014 for acknowledgement/rebuttal and she concurred with the recommendation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible for promotion to E-8 during her medical processing. Due to no fault of the applicant, her IDES process much longer than the goal of 305 days (took over 500 days) and she was removed from the promotion list.  Had her IDES process been completed in a timely manner she would have remained eligible for promotion during her retirement and authorized to retire at the grade of E-8.

2.  In accordance with MILPER Message 13-106, “Soldiers pending medical retention decision or medical separation will not be removed from a promotion list until promoted or after being determined fit for duty.”  In accordance with Title 10, USC, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade and promoted effective the day before placement on the retired list.

3.  In view of the foregoing, the concurrence of the NGB, and as a matter of equity, she is entitled to correction of her records to show she was promoted to E-8 effective 28 November 2013 and retired in that grade.   

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* promoting her to pay grade E-8 effective 28 November 2013
* voiding Orders Number D317-22, dated 13 November 2013, rescinding her retired grade of E-8
* showing she was retired with entitlement to back pay and allowances and retired pay in pay grade E-8



      __________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)                                         AR20140005375





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ABCMR Record of Proceedings (cont)                                         AR20140005375



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