IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140008966 


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 promotion to the rank/pay grade of staff sergeant (SSG)/E-6 and placement on the retired list in that grade.

2.  The applicant states according to the newest version of Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), dated 30 April 2010, paragraph 1-20(c), she should have been promoted to SSG during her out-processing effective the date prior to her placement on the retired list.  She was unaware of this change.  The personnel in the transition or retirement section should have been better briefed to check for these changes that affect Soldiers as they depart.

3.  The applicant provides copies of the following:

* Memorandum for Record (MFR)
* DA Form 1059 (Service School Academic Evaluation Report)
* two Enlisted Record Briefs (ERB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* AR 600-8-19, paragraph 1-20

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 1 March 2000.  She was awarded military occupational specialty 92A (automated logistical specialist).  She was promoted to the rank of sergeant (SGT)/E-5 on 1 October 2002.

3.  She provided copies of the following:

* DA Form 1059 showing she successfully completed Phase I Stand Alone Common Course of the Basic Noncommissioned Officer Course on 30 July 2008
* MFR, issued by Headquarters, U.S. Army Garrison, Fort Sam Houston, on 8 January 2007, wherein she was advised of the Soldier's responsibilities in the Semi-Centralized Promotion System
* Two ERBs, dated March and July 2008, showing the following promotion points

* 711 - 200801
* 716 - 200806

4.  She was retired on 27 May 2011, under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of temporary (enhanced) disability.  Her DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) – SGT
* Item 4b (Pay Grade) –E-5
* Item 12i (Effective Date of Pay Grade) – 1 October 2002

5.  In an advisory opinion, dated 10 July 2014, the Chief, Department of the Army (DA) Promotions, U.S. Army Human Resources Command (HRC), stated after review of the applicant's application it had been determined that her request should be disapproved.  The records available to the Junior Enlisted Promotion section indicated the applicant's promotion records did not reflect any promotion points at the time of her separation.  The applicant was not promotable and was not authorized a promotion upon separation.

6.  On 15 July 2014, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal and she did not respond.

7.  AR 600-8-19 sets the enlisted promotions and reductions function of the military personnel system.  Paragraph 1-20a of the regulation states Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board under AR 40-400 (Patient Administration) or referral to an Medical Evaluation Board or Physical Evaluation Board under AR 635-40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

8.  Title 10, USC, section 1372, which specifies any member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to the highest of the following:  

* the grade in which he/she is serving on the date when retired;
* the highest temporary grade in which he/she served satisfactorily;
* the permanent regular grade to which he/she would have been promoted had it not been  for the physical disability for which he/she is retired; or
* 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and she did not provide sufficient evidence she continued to maintain her promotable status to SSG prior to her retirement date of 27 May 2011.  There is also no evidence and she provided none to show she was authorized a promotion in accordance with Title 10, USC, section 1372 at the time of her separation.  Although she provided her ERB showing she had promotion points, these ERBs were dated three years before she separated.  According to the Junior Enlisted Promotion section her promotion records did not reflect any promotion points at the time of her separation in 2011.  

2.  Without evidence to the contrary, her disability separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize her rights.  She was properly issued a DD Form 214 showing the rank/pay grade of SGT/E-5.

3.  In view of the foregoing, there is insufficient evidence to support granting her 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)                                         AR20140008966



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008966


   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1