BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140010283 


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 he was retired in the rank and pay grade of sergeant (SGT)/E-5.

2.  The applicant states at the time of his release from active duty (REFRAD) he was promotable and was advised he would be promoted to the rank of SGT the day before he was to be placed on the Retired List; however, it was not done.  He also states the reenlistment code "9Q" was placed in his records after the Physical Evaluation Board (PRB) process had started.

3.  The applicant provides copies of his retirement orders and two copies of his  Enlisted Record Brief (ERB). 

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 15 February 2001 for a period of 5 years, training as a military policeman and a cash enlistment bonus.  He completed his one-station unit training at Fort Leonard Wood, Missouri and was transferred to Fort Myer, Virginia for his first assignment.  He was advanced to pay grade E-4 on 1 October 2002.    

3.  In February 2004, he transferred to Germany and on 1 July 2005 he reenlisted for a period of 3 years and a selective reenlistment bonus.

4.  On 18 June 2008, a PEB convened in Washington, DC and determined that the applicant’s diagnosed condition of right (dominant) shoulder pain and instability was unfitting and assigned a 30 percent service-connected rating.  The PEB recommended that he be retired by reason of permanent disability in pay grade E-4.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 

5.  On 30 July 2008, he was retired in pay grade E-4 due to permanent disability.  He had served 7 years, 5 months and 1 days of active service.

6.  A review of his official records failed to show evidence of the applicant's promotable status to SGT/E-5.  His ERB shows in Section 1 that he had 350 promotion points in February 2005.  There was no assigned promotion sequence number or any indication that he was selected for promotion.  Additionally, his ERB in Section III (Service Data) shows he had a reenlistment code of "9Q" indicating he had signed a Declination of Continued Service Statement.  The Declination of Continued Service Statement is not present in the available records.

7.  In the processing of this case a staff advisory opinion was obtained from U.S. Army Human Resource Command (HRC) which opines that the applicant was not eligible for promotion at the time of his REFRAD because he signed a declination of continued service statement during separation and was not in a promotable status.

8.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he was forced to sign the declination of continued service statement by his commander and first sergeant after the physical disability evaluation system process had begun.

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.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel.  

	a.  Paragraph 1-20 (Promotion of Soldiers in the Disability Evaluation System) provides that in accordance with the provisions of 10 USC 1372, Soldiers on a promotion list who are retired for physical disability will be retired for disability at the promotion list grade, effective the day before placement on the Retired List regardless of cutoff scores, sequence numbers, or position availability, provided they are otherwise fully eligible for promotion.

	b.  Chapter 3 governs the semi-centralized promotion process applicable to Regular Army Soldiers being considered for promotion to the ranks of SGT and staff sergeant.

	c.  Paragraph 3-1c provides that unit commanders will consider all Soldiers (specialist, corporal, and SGT) meeting the basic eligibility requirements for promotion recommendation on a monthly basis.  Soldiers who are competent in their current rank, who show potential to serve at positions of increased responsibility, will be recommended for promotion to the next higher rank.  This step is a critical element of ensuring the Army develops noncommissioned officer leaders within the framework of leader development doctrine in order to man future formations.  

	d.  Promotion boards will review the unit commander's recommendation and validate a Soldier’s recommendation with a "yes" or "no" vote to the promotion authority, recommending whether a Soldier should be integrated onto the promotion recommended list.  

	e.  Paragraph 3-13 (Processing Results of the Promotion Board) provides that the promotion authority has the final decision to integrate a Soldier onto the promotion recommended list.  Soldiers approved for integration will be considered promotable and the battalion Human Resources Specialist will activate the Soldier’s promotion score for inclusion onto their respective promotion list (by military occupational specialty).
11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at the time of separation, which are obtained from the Soldier's records (promotion or reduction orders). 

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s records do not contain and the applicant has not provided sufficient evidence to show that he was in a promotable status at the time the PEB made its determination that he was unfit for duty.

3.  Therefore, in the absence of evidence to show that he was in a promotable status at the time of his REFRAD or that the Declination of Continued Service Statement was in error, there appears to be no basis for granting his request.

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)                                         AR20140010283



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ABCMR Record of Proceedings (cont)                                         AR20140010283



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