IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140006868 


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 that his records be corrected to show that he was retired in the pay grade of E-9 effective 27 October 2009.

2.  The applicant states, in effect, that he was selected to attend the Sergeants Major Academy (USASMA) with a report date of August 2009.  He goes on to state that only master sergeants designated for promotion were selected to attend the USASMA; however,  he began terminal leave in August 2009 and was medically retired from the Army in October 2009.  He also states that it is reasonable to presume that he would have completed the USASMA and would have been promoted.  He continues by stating that because he was promotable, he should have received a grade determination at the time of his retirement and retired in the pay grade of E-9. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), Memorandum of Instruction for the E-9 Selection Board, and Enlisted Records Brief.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 27 June 1991 for a period of    4 years, training as a heavy wheel vehicle mechanic, assignment to Korea and a cash enlistment bonus.

3.  He completed his one-station unit training at Fort Jackson, South Carolina and was transferred to Korea for his first assignment.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-8 on 1 September 2005.  He served two tours in Iraq, one tour in Kuwait, two tours in Korea and one tour in Panama.

4.  The applicant was stationed at Fort Eustis, Virginia when he was selected to attend the USASMA in August 2009.

5.  Meanwhile, on 16 July 2009, a Physical Evaluation Board (PEB) convened in Washington, D.C. determined that the applicant’s diagnosed condition of cervical degenerative disc disease was unfitting and assigned a 20% service- connected rating.  Additionally, his diagnosed condition of lumbar disc degeneration warranted a 10% disability rating for a combined rating of 30%.  The PEB recommended the applicant be medically retired.  The applicant concurred with the findings and recommendations and waived a formal hearing of his case.

6.  On 27 October 2009, he was retired in the pay grade of E-8 under the provisions of Army Regulation 635-40, due to permanent disability.  He was placed on the retired list in the rank of first sergeant and had served 18 years,     5 months and 1 day of active service. 

7.  In the processing of this case, a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1 which opines that relief in the applicant’s case is not warranted because he was not in a promotable status at the time of his retirement.  The opinion goes onto state that until individuals completed the USASMS course,  they were not eligible to be considered for selection to the pay grade of E-9.

8.  The advisory opinion was provided to the applicant for comment and he responded through an email to a staff member of the Board to the effect that given the low failure rate of individuals from the USASMA, it is reasonable that he would have completed the course and would have been assigned a sequence number for promotion to E-9.  Accordingly, he should have received a grade determination and retired in the pay grade of E-9.

9.  Title 10, U.S. Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: 

	a.  the grade in which he is serving on the date when his name is placed on the Retired List; 

	b.  the highest grade in which he served satisfactorily; or

	c.  the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered and unfortunately appear to lack merit.

2.  By law, members of the Armed Forces being retired for disability are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served unless they are pending promotion to a higher grade.  However, the applicant did not attend the USASMA which was a requirement to be eligible for promotion to the pay grade of E-9.

3.  While it is unfortunate that the applicant was medically retired before being allowed to attend the USASMA, the fact remains that in order to be eligible for selection for promotion to the pay grade of E-9, individuals had to complete the USASMA course and the applicant was unable to do so.

4.  It is understood that the failure to attend and complete the USASMA was through no fault of the applicant; however, the applicant was not on the promotion standing list and thus was not eligible for a grade determination at the time of his retirement. 

5.  Accordingly, there appears to be no basis to grant the applicant’s request for retirement in the pay grade of E-9.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20140006868





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ABCMR Record of Proceedings (cont)                                         AR20140006868



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