IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140010544 


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:

The applicant defers his request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for: 

* promotion to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR), “effective 16 September 2011” with entitlement to back pay and allowances
* placement on the Retired List in the rank of LTC vice major (MAJ) on his 60th birthday
* correction of the applicant's mobilization DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 30 April 1991, to show his rank as LTC 

2.  Counsel states:

	a.  The decision rendered by the Army Board for Correction of Military Records (ABCMR) on 8 March 2012 regarding the applicant's request for promotion to LTC with an effective date of 16 September 2011 was rendered in error.  The ABCMR decision, dated 6 May 2013, that denied his request for reconsideration was also rendered in error.  The 6 May 2013 decision stated that his request did not meet the one-year filing date for requesting reconsideration.  This is wrong.  He submitted his request for reconsideration on 27 February and it was received by the ABCMR on 4 March 2013.  A receipt date of 4 March 2013 is within the one-year filing deadline of the decision rendered on 8 March 2012.  

	b.  The applicant enlisted in the Kansas Army National Guard (KSARNG) on 30 September 1970 and served until he was honorably discharged on 26 July 1978 to accept a commission in the KSARNG.  He was commissioned as a second lieutenant in the USAR and KSARNG and Oklahoma ARNG (OKARNG) on 27 July 1978 and continued to serve in the KSARNG and OKARNG in a variety of assignments.  On 26 August 1986, he was promoted to MAJ in the OKARNG.  On 18 January 1988, he was discharged from the OKARNG and was transferred to the USAR for assignment to a troop program unit (TPU) in Missouri.  On 26 November 1990, he was reassigned to the 14th Preventive Medicine Company for duty as the executive officer.  This was a LTC position.  On 29 November 1990, he was ordered to active duty with his unit in support of Operation Desert Shield/Storm.

	c.  He deployed to Saudi Arabia on 4 January 1991, and on 1 February 1991 his commander dispatched a recommendation for the applicant's promotion to LTC to his USAR Command in St. Louis. MO.  This dispatch to the command was initiated because the applicant was deployed and unable to complete and forward the appropriate documentation for the next scheduled promotion board to LTC.  During the period of his deployment, he served as the executive officer and served in an O-5 billet.  He departed Saudi Arabia on 16 April 1991 for medical reasons and was returned to Fort Leonard Wood, MO where he was honorably released from active duty on 30 April 1991.  He served 5 months and 2 days of active service during his deployment of which 3 months and 13 days were served overseas.  On 24 August 1991, he was transferred to the USAR Control Group (Retired) based on his own request due to medical conditions which occurred on active duty.  He was placed on the Retired List in the rank of MAJ effective 16 September 2011.

	d.  On 8 March 2012, the ABCMR rendered an opinion that his application and request for relief was denied in all respects.  The opinion denied his request to have his promotion to LTC reflected on the Retired List.  The opinion stated "it must be presumed that either the applicant's departure from theater or his subsequent transfer to the Retired List occurred before the unit vacancy promotion selection board convened or could be acted upon.  In any event, it is difficult at best to determine what happened in his case 20 years ago.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his request for a retroactive promotion to LTC in 1991."  On 6 May 2013, the ABCMR administratively closed his request for reconsideration.  

	e.  In this specific circumstance, it is in the interest of justice for the ABCMR to waive the one-year deadline to file a request for reconsideration under Army Regulation (AR) 15-185.  

	f.  This petition contains evidence of facts and argument not applied in the correct manner by the ABCMR during the original petition submitted by the applicant.  With this in mind, the new evidence is sufficient to demonstrate material error or injustice when applied to his specific circumstances.  The ABCMR’s mission is to correct errors in or remove injustices from Army military records.  Here, the injustice that has occurred was that the applicant was not promoted to LTC due to the fact that he was evacuated from Saudi Arabia and retired due to the medical conditions that occurred while on active duty.  Had he not requested to retire due to medical conditions occurring while on active duty, he would have been promoted to LTC due to him being educationally qualified, serving the requisite time in grade at MAJ to be considered for promotion, and was honorably serving in an O-5 billet when he was released from active duty and eventually placed in the Retired Reserve on 24 August 1991. 

	g.  Pursuant to Title 10, U.S. Code (USC), section 1372, "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 under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

		(1)  The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.

		(2)  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

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

		(4)  The temporary grade to which he would have been promoted had it not been for the physical disability for which he 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."

	h.  In accordance with Title 10, 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.  In early April 1991, the applicant was stricken with a kidney malfunction while deployed. He also suffered a renal disorder and associated calcification type stones blocked his left kidney function and he was subsequently evacuated from combat operations in Saudi Arabia and flown to the U.S. Army Hospital in Nuremberg, Germany.  From Nuremberg, he was evacuated for further treatment and eventually out-processed at Fort Leonard Wood, MO.  This occurred before further processing of his promotion packet could be accomplished.  It was at this point that he was compelled to retire due to health conditions which surfaced while deployed on active duty.  He was one of the 300,000 troops exposed to Sarin gas.  Exposure to Sarin has been linked to Gulf War syndrome.  He sought treatment from the Department of Veteran's Affairs (VA) for his exposure to Sarin and to this day complains of multiple symptoms related to Sarin exposure and Gulf War syndrome.  Unfortunately, medical records regarding his medical evacuation and subsequent treatment and diagnosis while on active duty have gone missing but he has received treatment for these issues at the VA.  He should have been medically retired from the Army due to the injuries he sustained while on active duty and promoted in accordance with Title 10, USC, section 1972.

	i.  Additionally, pursuant to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers), he had completed the time in grade requirement for service in the rank of MAJ (3 years) and educational requirements through completion of the Command and General Staff College (CGSC) to be eligible for promotion to LTC.  His promotion packet was submitted for a key unit vacancy and not a mandatory promotion selection board.  Therefore, at the time he was recommended for promotion he was serving in a LTC key unit vacancy and possessed the requisite criteria for promotion under the regulation.  When mobilization occurred, administrative responsibilities for him transferred from the Reserves to the Active Army.  Therefore, his promotion packet to LTC was the responsibility of the active Army once he was mobilized.  Cognizant of this fact, LTC C---ke (Commander, 14th Protective Medicine Unit), approached the Commanding General (CG) at Fort Leonard Wood during preparations to deploy to Southwest Asia.  He requested the applicant's promotion packet be finalized and submitted through the 169th Engineer Brigade which was the unit of assignment during the pre-deployment stage of operations. The CG appeared to be receptive to LTC Cl---ke's request and the promotion documents available at the time were provided to the CG's secretary.  However, the applicant did not receive an update as to the status of his promotion packet while at Fort Leonard Wood.  Colonel J----on followed up on behalf of the applicant with a letter dated 1 February 1991.  This letter requested the applicant's promotion to LTC and was sent during combat operations conducted in Saudi Arabia.  COL   J-----on sent this letter due to the fact that he had assumed command of the 14th Preventive Medicine Unit while LTC Cl---ke had been reassigned to a surgical team at King Kahlid Military City. 

	j.  The applicant's promotion packet was either lost or mishandled after it was correctly submitted by him, and this administrative error resulted in his promotion packet not being considered in either 1990 or 1991 before a promotion review board.  If he had not volunteered to mobilize and deploy with the 14th Preventive Medicine Unit he would have remained in the continental United States and performed his duties in the USAR and ensured that his promotion packet would have been properly submitted.  The advisory opinion dated 11 October 2011 from the U.S. Army Human Resources Command (HRC) for the applicant is incorrect.  It appears that this advisory opinion was provided under the assumption that the applicant's promotion packet was for a mandatory promotion and not as a key unit vacancy promotion consideration - the LTC position he was currently serving in at the time of the request.  This assumption had the effect of providing an incorrect advisory opinion to the ABCMR and further did not address the fact that the applicant's promotion packet had not been received by the promotion board for the key unit vacancy for which he was already serving. 

	k.  In this specific circumstance, the applicant was serving in an O-5 billet at the time of his deployment.  He was medically evacuated from theater on 16 April 1991.  He possessed the 3-year minimum time in grade as a MAJ for promotion to LTC and he was educationally qualified for promotion to LTC through completion of CGSC.  After his evacuation from theater he was transferred to the Retired Reserve due to injuries sustained from his service overseas.  He was transferred to the Retired Reserve due to injuries he sustained during deployment and should have been medically retired due to those injuries.  In applying the facts regarding his situation to the plain language of Title 10, USC, section 1372 and Army Regulation 135-155, the applicant was satisfactorily serving in an O-5 grade at the time he was placed in the Retired Reserve and, but for the injuries he sustained while deployed and which led to his retirement, he would have been promoted to the rank of LTC.  He served in the capacity of LTC with the 14th Preventive Medicine Unit during Operation Desert Shield/ Storm and Saber, from November 1990 to August 1991.  Consequently, his contention that he should be promoted to the rank of LTC and placed on the Retirement List on 16 September 2011 and be given all appropriate back pay and allowances was carefully reconsidered and found to have merit.  The evidence of record in this case confirms that the appropriate regulatory and statutory guidance was not used during the promotion selection process concerning his promotion to LTC.  As a result, an injustice has occurred in the promotion selection process and it would be appropriate to correct his record to show he was promoted to LTC and placed on the Retired List.  Additionally, it would be in the interest of justice to correct his DD Form 214 to reflect the retired rank of LTC.

3.  Counsel provides previously-submitted or previously-available evidence is indicated with the letters "PS or "PA": 

* ABCMR Docket Number AR20110016637, dated 9 March 2012 (PA)
* ABCMR Docket Number AR20130006341, dated 6 May 2013 (PA)
* DD Form 214 (PS)
* DD Form 215 (Correction to DD Form 214) (PS)
* Letter, dated 1 February 1991, from COL Jo----on (PS)
* Retirement Orders P06-946574, dated 8 June 2011 (PA)
* HRC previous advisory opinion, dated 11 October 2011 (PA)
* DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 26 August 1990 (PS)
* Request for Vacancy Fill, dated 15 August 1990 (PS)
* Permanent Order 36-1, dated 28 November 1990 (PS)
* Orders 181-13, dated 27 November 1990 (PS)
* Orders 173-3, dated 13 November 1990 (PS)
* Permanent Orders 153-8, dated 27 November 1990 (PS)
* Orders 107-59, dated 17 April 1991 (PS)
* Permanent Orders 2-1, dated 4 January 1991 (PS)
* Orders 168-10, dated 3 September 1991 (PS)
* CGSC DA Form 1059 (Service School Academic Evaluation Report), Academic Transcripts, and Diploma (PA)

4.  Counsel submitted the following new evidence: 

* Letter, dated 9 May 2013, from his member of Congress
* Self-authored Biographical Summary dated 8 August 1990
* VA medical records, dated 30 January 2014
* FEDEX Documents to ABCMR, dated 4 March 2013 (delivery date)
* Self-authored personal statement 
* Army Times Article "Study:  Sarin at Root of Gulf War Syndrome," dated 25 May 2007
* Distinct Army and Air Force Units in Khamisiyah 2000 Hazard Area, March 10-13, 1991



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110016637, on 8 March 2012. 

2.  The applicant did not then and does not now meet the two-tiered criteria for a request for reconsideration.  The Board adjudicated his case on 8 March 2012.  His completed and signed request for reconsideration may have been initiated on 27 February 2013 but was not received by the Board until 26 March 2013, not 
4 March 2013 as counsel contends.  Nevertheless, due to the confusion with the dates and the applicant's lack of understanding of the reconsideration process, his request will be reconsidered as a one-time exception to policy.

3.  The applicant's available records show he was born in September 1951.  He turned 60 years of age in September 2011. 

4.  Having had prior enlisted service in the ARNG, he was appointed as a Reserve commissioned officer of the KSARNG on 27 July 1978.  He completed the Ordnance Officer Basic Course.  He served in various positions and he was advanced to captain in the ARNG in July 1982. 

5.  He completed the Medical Services Corps (MSC) Officer Basic Course in 1984 and appears to have transferred to the 145th Medical Company, OKARNG around March 1984.  

6.  He also completed the MSC Advanced Officer Course in 1985 and he was advanced to MAJ in the ARNG on 26 August 1986.  He was separated from the ARNG on 18 January 1988 and he was transferred to the USAR.

7.  He was assigned to a TPU of the USAR, 325th General Hospital, Independence, MO.  He also attended and successfully completed CGSC on 
14 August 1989.  He transferred to the 139th Medical Group, Independence, MO around November 1989. 

8.  On 15 August 1990, by memorandum, from LTC C---ke, Commander, 14th Protective Medicine Unit, Springfield, MO to the Commander, 139th Medical Group, stated that he met with the applicant on 13 August 1990 concerning the possibility of him filling a vacant executive officer position within the unit.  He requested favorable consideration. 

9.  On 26 August 1990, a DA Form 4651-R was initiated by the Commander, 14th Preventive Medicine Unit, through the Commander, 139th Medical Group, to the USAR Command, St. Louis, MO.  He requested the applicant's voluntary assignment (vacancy fill) to the 14th Preventive Medicine Unit, effective 
1 December 1990, to fill paragraph/line number 101-02, Executive Officer, LTC position, duty specialty 67A (Health Care Administration).  

10.  On 13 November 1990, Headquarters, 102nd USAR Command, St. Louis, MO, published Orders 173-3 reassigning the applicant from the 139th Medical Group to the 14th Preventive Medicine Company, effective 1 December 1990, later amended to read 26 November 1990. 

11.  On 28 November 1990, Headquarters, 102nd USAR Command, St. Louis, MO, published Orders 36-1 ordering the 14th Medical Detachment (Preventive Medicine Unit) to active duty for 180 days, reporting to Fort Leonard Wood, MO, on or about 2 December 1990. 

12.  He entered active duty on 29 November 1990 and subsequently served in Southwest Asia from 4 January 1991 to 16 April 1991.   He was assigned to Headquarters Detachment, 136th Engineer Brigade. 

13.  His DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments), he performed duties as follows: 

* 2 December 1990, S-1, 14th Medical Company, Fort Leonard Wood, MO
* 15 January 1991, S-1, 14th Medical Company, Dhahran, Saudi Arabia

14.  On 1 February 1991, by memorandum through the CG, 332nd Medical Brigade, and through the Commander, 139th Medical Group, to the CG, 102nd USARC, St. Louis, COL J----on, the Commander, 14th Preventive Medicine Unit requested the applicant be considered for promotion to LTC.  He stated: 

	a.  Under the provision of paragraph 2-9 of Army Regulation 135-55, request the applicant be considered for promotion to LTC.  He is currently assigned as the executive officer of the 14th Preventive Medicine Unit, paragraph 101, line 02, position 0010, which is a LTC position. 

	b.  He joined the 14th Preventive Medicine Unit on 26 November 1990 and mobilized with the unit in the position of executive officer in support of Operations Desert Shield/Storm.  Current guidance provides that Reserve officer promotions while on active duty are accomplished by the appropriate Army Reserve Command. 

	c.  While the applicant is in Saudi Arabia, he will not be able to complete and forward the appropriate documentation for the next scheduled promotion board to LTC.  He requested the 102nd Army Reserve Command finalize the promotion. 

15.  On 8 April 1991, the U.S. Army Reserve Personnel Center issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

16.  On 17 April 1991, Headquarters, U.S. Army Engineer Center, Fort Leonard Wood, published Orders 107-59 honorably releasing him from active duty on 
30 April 1991 and further assignment to the 5504th Dental Services, Springfield, MO.

17.  He was honorably released from active duty on 30 April 1991 by reason of completion of his required active service.  He completed 5 months and 2 days of active service.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) the entry MAJ
* item 4b (Pay Grade) the entry O-4
* item 12h (Effective Date of Pay Grade) the entry 1985-08-28

18.  On 3 September 1991, Headquarters, 5th U.S. Army, Fort Sam Houston, TX, published Orders 168-10 releasing the applicant from the 14th Preventive Medicine Unit and transferring him to the Retired Reserve, per his request, effective 24 August 1991.  

19.  On 8 June 2011, HRC published Orders P06-946574 placing him on the Retired List in his retired grade of MAJ effective 16 September 2011, his 60th birthday. 

20.  None of the applicant's Officer Evaluation Reports are available for review.  Additionally, although he provides copies of his enlisted service physicals and some periodic physical from the early 1980s, there are no service medical records pertaining to his illness, evacuation, treatment, or physical during or after his service in Southwest Asia.

21.  Counsel provides an internet printout from the Army Times website, dated 25 May 2007, pertaining to a study titled: Sarin at root of Gulf War Syndrome. 

22.  Counsel also provides an internet printout from a military website, updated on 21 November 2000, listing Army and Air Force units in Khamisiyah Hazard Area during the period 10 to 13 March 1991. 

23.  Title 10, USC, section 1372 (grade on retirement physical disability, members of the Armed Forces), states 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 under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

* the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired
* the permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination
* the temporary grade to which he would have been promoted had it not been for the physical disability for which he 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

24.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  The version in effect at the time states consideration for a non-unit officer (and unit officer if not earlier promoted) for promotion to the next higher grade is mandatory upon his meeting the time in grade and total years of service requirements, whichever occurs later. 

	a.  Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) of this regulation outlines the service requirements for promotion and indicates that for promotion to LTC the maximum years in the lower grade is 7 years and 4 years minimum (i.e., unit vacancy promotion).

	b.  Paragraph 2-8 (Military Education Requirements) states to qualify for selection, commissioned officers (other than commissioned warrant officers) must complete the military educational requirements in table 2-2 not later than the day before the selection board convene date.  Table 2-2 states the military education requirements for promotion from MAJ to LTC is 50 percent of the Command and General Staff Officer Course.   

	c.  Chapter 4 (Processing Selection Board Recommendations), section III (Dates of Promotion), provides the procedures for computing promotion effective dates of all RC Soldiers.  It states the DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade and that an officer’s PED will become their DOR upon promotion and this date will be used to establish the relative seniority for officers holding the same rank.  

25.  Army Regulation 135-155 states promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

26.  Army Regulation 135-155 states that promotion to fill authorized TPU position vacancies may be filled through promotion of the best qualified, geographically available officers to the grades of captain through colonel.  USAR position vacancy promotion consideration to fill a TPU position vacancy is authorized (1) when the Commander, USARC – St. Louis notifies a TPU commander that no qualified Individual Ready Reserve (IRR) officer of the authorized grade is geographically available, and (2) when the area commander concurs with the TPU commander on the nonavailability of IRR officers of the same grade and specialty as the position vacancy.  The regulation does not provide for promotion consideration by an SSB for erroneous consideration by a position vacancy board or non-promotion to the next higher grade as a result of a position vacancy selection.

27.  Army Regulation 15-185 (ABCMR) states the ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  There are three issues raised by counsel pertaining to the applicant: his promotion to LTC, his placement on the Retired List in the rank of LTC, and correction of his DD Form 214 to show his rank as LTC. 



2.  With respect to promotion to LTC: 

	a.  The applicant was recommended for promotion to LTC via a unit vacancy. However, this was a recommendation, not a firm promotion.  Promotion to fill authorized TPU position vacancies may be filled through promotion of the best-qualified and geographically available officers to the grades of captain through COL.  The existence of a valid position will be determined by counting certain officers against the strength authorized.  The area commander will ensure that the intent of the position vacancy fill procedures have been complied with before proceeding with position vacancy promotion consideration. 

	b.  Contrary to counsel's contention that "when mobilization occurred, administrative responsibilities for him transferred from the Reserves to the Active Army," the guidance in effect at the time provided that Reserve officer promotions while on active duty are accomplished by the appropriate ARCOM.  Here, there is no evidence that the ARCOM (102nd USAR Command) received or accepted the recommendation for promotion and/or published an order for promotion.  This is further complicated with the fact that his DA Form 2-1 shows he performed duties of unit S-1.  

	c.  The ABCMR is not a promotion board.  However, if there is an error in non-selection for promotion, the ABCMR corrects the error by directing an SSB to give the Soldier an opportunity for an equitable consideration.  Unfortunately, the regulation does not provide for promotion consideration by an SSB for erroneous consideration by a position vacancy board or non-promotion to the next higher grade as a result of a position vacancy selection. 

	d.  Based on his date of rank to MAJ (28 August 1986), the earliest he would have been entitled to mandatory promotion consideration to LTC would have been during Fiscal Year 1992.  He requested a transfer to the Retired Reserve prior to the convening date of that board and as such, he was removed from the Reserve active status list.  Since he retired on 24 August 1991, he never reached consideration eligibility for promotion to LTC.  Therefore, having been never eligible, considered, or selected for promotion to LTC, he is not entitled to such promotion by a mandatory board. 

3.  With respect to his DD Form 214, because the applicant was released from active duty in the rank of MAJ, his DD Form 214 correctly listed this rank, grade, and effective date of rank.  The promotion or reduction instrument - the order - is the source document for the entry of a rank and/or grade on the DD Form 214.  


In the absence of a promotion order, his DD Form 214 correctly shows his rank and grade and there is no reason to change it. 

4.  With respect to placing the applicant on the Retired List in the rank of LTC, counsel cited an incorrect statute.  Title 10, USC, section 1372 pertains to the grade on retirement by physical disability and to any member who is retired for physical disability under section 1201 or 1204 of this title.  The applicant did not retire by reason of physical disability.  He retired (transferred to the Retired Reserve) because he completed 20 qualifying years of service and requested a transfer to the Retired Reserve.  Therefore, section 1372 does not apply to him. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20110016637, dated 8 March 2012.



      __________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)                                         AR20140010544



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ABCMR Record of Proceedings (cont)                                         AR20140010544



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