IN THE CASE OF:    

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140014900 


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, in effect, advancement on the retired list to sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.

2.  The applicant states:

	a.  Although he retired in the pay grade of E-4 promotable, he believes he served satisfactorily at a higher grade while on active duty.  

	b.  According to his reading, he should have been eligible for promotion prior to his medical retirement from the U.S. Army.  However, due to severe wartime injuries, multiple surgeries, and time away from his unit during a 2-year recovery period, he was not provided a fair opportunity to go before a board to be promoted to pay grade E-5.

	c.  He was medically retired in a lower grade without the benefit of a review by the Army Grade Determination Review Board (AGDRB).  

3.  The applicant provides:

* Letter addressed to the AGDRB
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, GA, Orders 220-0008, dated 8 August 2007
* Enlisted Record 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 28 May 2003 in pay grade E-3.  He completed initial entry training and was awarded military occupational specialty (MOS) 14R (Air Defense Artillery).  

3.  He provided a copy of his Enlisted Record Brief that shows he was promoted to SPC/E-4 on 1 January 2005.  

4.  He served in Iraq from 4 January 2005 to 6 January 2006.  

5.  On 27 June 2007, he was evaluated by a Medical Evaluation Board (MEB) while he was serving in the rank/pay grade of SPC/E-4.  After consideration of clinical records, laboratory findings, and a physical examination, the MEB found the applicant had the following medical conditions:

* Chronic post-traumatic stress disorder
* Right ulnar nerve neuropathy after blast injury
* Right ankle and leg pain after an open tibia and fibula fracture after an Improvised Explosive Device blast
* Right forearm pain after two bone forearm fractures
* Right leg scar after split thickness skin grafting of right leg wound
* Right upper extremity scar after decompressive fasciotomy at the right arm
* A scar on the left leg after harvesting a split thickness skin graft

6.  He agreed with the findings and recommendation of the MEB and was referred to a Physical Evaluation Board (PEB).  

7.  On 11 July 2007, an informal PEB determined he was physically unfit and recommended a permanent disability retirement with a 70 percent combined disability rating.  

8.  The PEB Proceedings show his rank as "SPC."  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. 

9.  He provided Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, GA, Orders 220-0008, dated 8 August 2007, which show he was released from his assignment and duty because of physical disability, effective 4 September 2007, and placed on the retired list in the rank of SPC on 5 September 2007 with a 70 percent disability rating.  At the time of retirement, he had completed 4 years, 3 months, and 7 days of active service.

10.  His DD Form 214 shows his rank and pay grade as SPC/E-4 in items 4a (Grade, Rate, or Rank) and 4b (Pay Grade).  Item 12h (Effective Date of Pay Grade) of his DD Form 214 shows "2005 01 01."

11.  His service record is void of evidence which shows he was considered for or selected for promotion to the rank of SGT/E-5 prior to his medical retirement.  

12.  He provided a letter addressed to the AGDRB in which he explains the reasons for his request:

	a.  He was considered to be in the FAST Track Program while he was in the U.S. Army.  He was promoted from E-3 to E-4 within six months of being with his assigned unit, 5th Battalion, 7th Cavalry, Fort Stewart, GA.  He was given his rank in the first week of his unit's tour in Iraq.  It was explained to him that he was being "fast tracked" into a leadership position due to his previous successes as a Soldier.  

	b.  He was thrust into a leadership role the first moment he was placed with his unit.  He was responsible for the health, morale, welfare, discipline, individual, collective training, and the professional development of five enlisted Soldiers and he was responsible for the maintenance of and accountability of one M2/M3 Bradley Fighting Vehicle and one High Mobility Multipurpose Wheeled Vehicle (HMMWV).  He states it was an honor to lead his assault team on many missions and all of them arrive safely back home.  

	c.  He believes his promotion to pay grade E-5 was halted by two factors.  The first factor was that his MOS was 14R and the unit he was assigned to, 1st Battalion, 3rd Air Defense Artillery, was originally a part of the Army's modularity program and was converted to the 5th Squadron, 7th Cavalry Regiment at Fort Stewart under the 3rd Infantry Division.  The squadron was officially reactivated on 21 July 2004.  The squadron deployed in January 2005, the same month he was promoted to pay grade E-4.  

	d.  His leadership explained to him that if he wanted to get promoted to pay grade E-5 he would have to re-enlist in MOS 19D (Cavalry Scout).  He was excited to hear he was being considered for promotion to pay grade E-5; however, he was not prepared to make a decision about re-enlisting while still in a war theater.  

	e.  He performed the role of Cavalry Scout Team Leader and led a group of five individuals into an out of battle, but he was never given appropriate credit because his true MOS was 14R, an MOS in which he never performed duties while in the service.  

	f.  The second factor is he was severely injured on 15 December 2005 during the last few days of his unit's tour in Iraq.  Prior to his injury, he was told to prepare to go before the board because he was being placed on the promotion list for pay grade E-5 based on his time, grade, and leadership ability while in Iraq as an E-4 promotable.  His chain of command also had to address the need to fill new open slots for all the departing noncommissioned officers who were under "Stop-Loss Orders" in his unit.  

	g.  He was never provided the opportunity to go before a promotion board because of the severe injuries he sustained in Iraq.  His injuries prevented him from doing anything for 2 years and when he arrived back to his unit, all of his original leadership was gone and no one knew of him.  He was quickly placed in a Warrior Transition Unit and he went through the Medical Review Board.  When he asked about how he could be promoted to pay grade E-5 prior to being separated he was told that was not possible due to his medical condition.  There was no leadership to inquire about the promotion because they had all moved on.  

	h.  He does not believe he was provided an equal opportunity to be promoted to pay grade E-5, which would have been easily accomplished if he had not gotten injured or refused the initial re-enlistment offered to him.  The military would have been a lifelong career for him, but that option was not available to him after he sustained injuries.  



13.  Army Regulation (AR) 600-8-19 (Enlisted Promotion and Reductions) prescribes policies and procedures governing promotions and reductions of Army enlisted personnel.  

	a.  Soldiers in the Disability Evaluation System (DES) process who are pending a medical fitness determination (referral to an MEB under AR 40-400 (Patient Administration), or PEB under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) remain otherwise eligible for promotion consideration, selection, and pin-on.  

	b.  While in the DES, Soldiers are not required to meet prescribed service remaining requirements for promotion as provided for in this regulation.

	c.  Per the provisions of Title 10, U.S. Code, (USC) section 1372, Soldiers on a promotion list who are retired for physical disability (10 USC 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (10 USC 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade.  The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability.  In all cases, the Soldier must otherwise be fully eligible for promotion in accordance with paragraph 1-10.  

	d.  Table 3-1 shows the eligibility criteria for recommendation and promotion for SGT is 17 months time in service (TIS) and 5 months time in grade (TIG) for the secondary zone and 35 months TIS; 7 months TIG for the primary zone; and 47 months TIS and 11 months TIG for command list integration.

14.  AR 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated to make grade determinations on behalf of the Secretary of the Army.  The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.  The regulation states that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, 10 USC 1212 and 1372.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was retired as an E-4 promotable but he served satisfactorily at a higher grade while on active duty is acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case.  

2.  The applicant was promoted to SPC/E-4 on 1 January 2005.

3.  The evidence of record shows the applicant was medically retired on 4 September 2007 and he was placed on the retired list in the rank of SPC/E-4.  

4.  The applicant's service record is void of evidence which indicates he was considered or selected for promotion to the rank of SGT prior to his retirement date of 4 September 2007.  Additionally, his service record is void of evidence which shows he was on a promotion list the time of his retirement; he was not in a "promotable" status and he was placed on the retired list in the appropriate rank of SPC/E-4.  

5.  The applicant's contentions that he was not provided a fair opportunity to go before a promotion board for promotion to pay grade E-5 due to his severe wartime injuries, multiple surgeries, and recovery period are acknowledged.  However, Soldiers in the DES process who are pending a medical fitness determination remain eligible for promotion consideration, selection, and pin-on.  Therefore, he would not have lost his eligibility for promotion to SGT/E-5 due to his injuries.  His service record is void of evidence and he has provided no evidence which shows he was improperly denied consideration or selection for promotion while in the DES process.  

6.  The applicant's contention that he was medically retired in a lower grade without the benefit of a review by the AGDRB is also acknowledged.  The regulation states that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law.  It does not appear that a grade determination was requested or required at the time of the applicant's medical retirement.  

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)                                         AR20140014900



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ABCMR Record of Proceedings (cont)                                         AR20140014900



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