IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150004308 


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 correction of his records to show he was discharged from the U.S. Army Reserve (USAR) on 15 January 2008 in the rank of captain (CPT) vice first lieutenant (1LT).

2.  The applicant states, in effect: 

	a.  He was medically discharged from the USAR on 15 January 2008, in the rank of 1LT.  His discharged was based on an injury to his lower back that occurred in an off duty status.  The injury was not a result of misconduct and was documented during the course of a routine medical examination.  At the time of separation he had already been successfully boarded and approved by the Army Reserve Components Selection Board for promotion to CPT.  Upon separation from the USAR, he was not promoted to the Reserve officer rank of CPT to which he would have been promoted, had it not been for the physical disability for which he was discharged.  At the time of discharge he was not aware nor advised to apply to the Army Board for Correction of Military Records (ABCMR). 

	b.  In June of 2014 he returned to commissioned service in the USAR.  As a part of his return, he successfully passed a physical examination and he is currently rated "1" in all components of his PULHES.  He is currently a member of the Individual Ready Reserve (IRR) and in the process of transitioning to a troop program unit (TPU).  However, he still holds the rank of 1LT.  It was during the process of returning to the service that he became aware that under Title 10, U.S. Code (USC), section 1372, he potentially should have been promoted to CPT upon his discharge in 2008.  
	c.  If he had known about this earlier, he would have made application to the ABCMR much sooner.  He requests that the Board correct the error and promote him to the rank of CPT, which is the rank he had been previously approved to receive, prior to his medical discharge in January 2008.  He considers himself to be a good Soldier, both then and now, and he wishes to serve our country.  An appropriate adjustment to his current rank will certainly correct the previous error or injustice and be highly beneficial. 

3.  The applicant provides:

* Congressional correspondence
* 2008 discharge orders 
* Screen shot from the U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT) and executed an oath of office on 26 March 2001.  He completed the Quartermaster Officer Basic Course.  

2.  He served in a variety of USAR TPU assignments and he was promoted to 1LT on 25 March 2003.  He was assigned to the 1st Battalion, 485th Regiment, 108th Division, Salem, NC.

3.  On 22 February 2007, by letter, HRC informed him that he was considered for promotion to CPT by the Department of the Army Reserve Components Selection Board (RCSB) that convened on 7 November 2006 and he was selected for promotion with a promotion eligibility date of 24 March 2008. 

4.  On 21 December 2007, Headquarters, 81st Regional Readiness Command, Birmingham, AL published Orders 07-355-0004 honorably discharging him from the USAR effective 15 January 2008.  The facts and circumstances surrounding this discharge are not available for review with this case.  The orders listed his rank at the time of discharge as 1LT.

5.  He was reappointed as a Reserve commissioned officer of the Texas Army National Guard (TXARNG) in the rank of 1LT and executed an oath of office on 19 June 2014.  

6.  He was honorably separated from the TXARNG on 1 February 2015.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he resigned his ARNG commission in accordance with National Guard Regulation 635-100 (Personnel Separations), paragraph 5-(a)(3).  His NGB Form 22 listed his rank as 1LT. 

7.  On 28 August 2015, HRC published Orders B-08-503479 promoting him to CPT with an effective date and date of rank of 29 May 2015.  

8.  An advisory opinion was received from HRC in the processing of this case.  An advisory official recommended disapproval of the applicant's request and stated although the applicant was recommended for promotion to CPT by the 2006 Army Promotion List (APL), his assertion that he was due promotion to CPT upon his medical discharge is without merit.  He refers to Title 10, USC, section 1372 in his request.  However, this section addresses the grade on retirement for physical disability. He was not placed on the Retired List upon his separation in January 2008.  He was discharged.  Title 10, USC, section 1372 does not apply to him.  As he noted, he was medically discharged due to a back injury that did not occur in line of duty.  He was reappointed on 19 June 2014 in the TXARNG in the rank of 1LT with a date of rank of 29 August 2009.  He was considered by the Fiscal Year 2015 APL and was recommended for promotion. 

9.  The applicant was provided a copy of this advisory opinion to give him an opportunity to submit comments and/or a rebuttal.  He did not respond. 

10.   Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  Table 2-1 states the time in grade requirements for promotion from 1LT to CPT is a minimum of 2 years on the lower grade and a maximum of 5 years in the lower grade.  Paragraph 4-11a states an officer who has been recommended for promotion to the next higher grade must meet the requirements before being promoted in the Reserve components.  The officer must be on the Reserve Active Status List, be in the zone of consideration, be medically qualified, has undergone a favorable security screening, meets standards of the Army Body Composition Program, and be a satisfactory participant.

11.  Title 10, USC, section 1372 (Grade on Retirement for 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 undersection 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant served as a commissioned officer of the USAR from 26 March 2001 to 15 January 2008.  He was promoted to 1LT on 25 March 2003.  He was considered and selected for promotion with a promotion eligibility date of 24 March 2008 (maximum of 5 years in the lower grade).  However, he was discharged from the USAR on 15 January 2008 prior to attaining promotion eligibility.  His discharge rank of 1LT is correct.  

2.  By law, a member of an armed force who is retired for physical disability or whose name is placed on the temporary disability retired list is entitled to the grade equivalent to 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 applicant did not retire.  He was honorably discharged.  This provision of the law does not apply to him. 

3.  Upon reappointment in the TXARNG and with an adjusted date of rank (August 2009), he was considered and selected by the 2015 APL.  A promotion order was published to promote him to CPT effective 29 May 2015. 

4.  The applicant did not provide sufficient evidence to show his discharge grade in 2008 was contrary to law or regulation.  He does not meet the criteria to have his 2008 discharge grade changed from 1LT to CPT. 





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)                                         AR20150004308



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ABCMR Record of Proceedings (cont)                                         AR20150004308



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