APPLICANT REQUESTS: That the effective date and date of rank (DOR) for his promotion to the pay grade of E-4 be corrected to show that he was promoted on 10 January 1996.
APPLICANT STATES: That he was erroneously flagged for being overweight on 15 December 1995 and placed on the overweight program. After an evaluation by medical personnel it was discovered that his weight gain was the result of a medical reason and he was removed from the weight control program on 27 March 1996 and promoted to the pay grade of E-4 on 1 April 1996. However, on 10 January 1996 he had 26 months time in service and should have been promoted to the pay grade of E-4 without a waiver.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 10 November 1993 for a period of 3 years and for training as a supply specialist.
On 15 December 1995, while stationed at Fort Bragg, North Carolina, the applicant was flagged for being overweight and subsequently counseled in regards to his responsibility to achieve body fat standards.
The applicants commander referred the applicant to the local troop medical clinic for an evaluation to determine if the applicants weight problems were the result of a medical condition.
Although the notice from health care personnel is undated, it indicates that the applicant had a medical problem that impacted on his weight and tape measurements and that it was scheduled to be remedied by June 1996.
The applicants commander lifted the suspension of favorable personnel actions (flag) against the applicant on 27 March 1996. On 15 April 1996 the commander signed a promotion order promoting the applicant to the pay grade of E-4 effective 1 April 1996.
In the processing of this case the Enlisted Records and Evaluation Center (EREC) provided the Board with a memorandum of administrative review in which the EREC opined that the applicant was not eligible for promotion during the period he was under a suspension of favorable personnel actions (flag) and that his request should be denied.
Army Regulation 600-8-19 provides policies and procedures governing the promotion of enlisted personnel. Paragraph 1-13 states, in pertinent part, that for soldiers being advanced to the pay grades E-1 through E-4, commanders will submit a DA Form 4187 to the next higher advancement authority requesting that a soldier be advanced with a retroactive date and explaining the reason for delay in advancement. If the next higher advancement authority approves the request, he or she will indicate by first endorsement and direct the soldiers advancement with the correct effective date. The approval will be filed in the individuals Military Personnel Records Jacket.
That regulation also states that commanders may advance soldiers to the pay grades of E-2 through E-4 with a waiver of time in grade and time in service provided they do not exceed the ceiling limitations placed on their unit. Retroactive promotions also apply against the ceiling limitations of personnel assigned by grade.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The applicants contention that he was erroneously flagged for being overweight is without merit. Until such time as a medical determination was made that his weight gain was the result of a medical condition, it was appropriate for the commander to flag him.
3. The applicants contention that he would have been automatically promoted to the pay grade of E-4 on 10 January 1996, when he no longer required a waiver is without merit. Not only are promotions to the pay grade of E-4 based on the ceiling limitations established by the Department, they also require approval by the unit commander. There is no evidence to show that the commander would have recommended the applicant for promotion any earlier than he did. This is further supported by the lack of evidence showing that the commander attempted to have the applicants effective date and date of rank corrected in accordance with the applicable regulation.
4. While the applicant would have the Board believe that promotion to the pay grade of E-4 is automatic once a soldier attains 26 months time in service, such is not the case.
5. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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