MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:            7 October 1998                  
	DOCKET NUMBER:   AC97-07423

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.




	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)


APPLICANT REQUESTS:  He has submitted two applications.  The first application requests, in effect, that his length of service retirement be changed to a medical retirement.  The second application requests, in effect, that his records be corrected to show he was promoted to Master Sergeant as a 94Z (Food Service Supervisor) in 1968 or 1969.

APPLICANT STATES:  In the first application, in effect, that not all his service-connected disabilities were considered.  He was disabled for continued active duty in his primary and duty military occupational specialty (MOS) of 76Z (Senior Supply Sergeant) but the Physical Evaluation Board’s records were altered to show that he performed satisfactorily as a 94Z (Cook).  In his second application he states that his depot commander recommended him for promotion to Master Sergeant within MOS 94Z but his recommendation had not been forwarded.  This forced him to continue his career as a 76Z which caused him considerable added stress and depression.

EVIDENCE OF RECORD:  The applicant’s military records show:

He initially enlisted in the Regular Army on 24 May 1949.  He had service in the Army National Guard and reenlisted in the Regular Army on 22 March 1955.  He was awarded secondary MOS 94B40 (Cook) on 24 May 1966.  MOS 76X40 (Subsistence Storage Specialist) was awarded as his primary MOS on 7 August 1967.  

On 21 February 1969, his unit forwarded a promotion packet on him, through command channels to Department of the Army, for consideration for promotion to E-8 in MOS 94Z50.  There is no evidence in the records or submitted by the applicant to show his command meant to recommend him for promotion earlier than this date.

He was awarded a secondary MOS of 94Z50 on 1 February 1970.  He was promoted to Master Sergeant on 7 July 1970 in primary  MOS 76Z50 (the career progression MOS of 76X).

His Enlisted Efficiency Report (EER) ending period May 1971 shows his duty MOS as 76Z50, Senior Supply Sergeant.  He received an “excellent” (ratings ranging from “outstanding,” “excellent,” “above average,” “average,” and “below average,” to “unsatisfactory”) rating in duty performance.  The EER did recommend assignment in a different duty MOS, 94Z50, but the rater commented that with “additional exposure in the logistical field he will have attained the knowledge and definitely should be considered to be promoted with his contemporaries…”

His EER ending period November 1971 shows his duty MOS as 76Z50, Senior Supply Sergeant.  He received an “outstanding” rating in duty performance.  No comments were made.

On 13 January 1972, he received a letter of commendation.  The letter stated in part:  “…Your success in mastering the technical demands of a field in which you had no prior experience coupled with your personal interest in your work and the untiring effort to achieve perfection in the S-4 area…”

His EER ending period May 1972 shows his duty MOS as 76Z50, Supply Sergeant.  He received an “outstanding” rating in duty performance.  The EER did recommend assignment in a different duty MOS, 94Z50, the rater stating that the applicant did not have the exposure in the logistical field that his contemporaries had.

His EER ending period May 1973 shows his duty MOS as 76Z50, Supply Sergeant S4 (battalion logistics).  He received an “outstanding” rating in duty performance.  The EER did recommend assignment in a different duty MOS, 94Z, but the rater did state that he performed his job in a thorough and energetic manner, devoting his considerable talents to the successful accomplishments of his assigned tasks.  He also stated the applicant had potential as a First Sergeant.

On 2 July 1973, the applicant requested retirement effective 31 December 1973 for length of service.  His request was approved on 23 July 1973.

On 20 December 1973, the applicant was placed on Medical Hold Status pending results of surgery and medical evaluation for possible medical board.  His retirement was canceled on 27 December 1973.

On 21 May 1974, the applicant was given a temporary profile for an eye disease of unknown cause with decreased vision.

His EER ending period August 1974 shows his duty MOS as 76Z50, Supply Sergeant.  He received an “excellent” rating in duty performance.  His rater did comment that he had had problems because of a medical hold caused by his physical condition but that he still had First Sergeant potential.  

On 6 September 1974, a medical board found the applicant medically unfit by reason of high blood pressure, eye disease, arthritis, hearing loss, stone in prostate, chronic sore on lip, old fracture right arm, old fracture left arm with mild loss of strength and surgery of right hand and finger.  He was referred to a PEB.

On 16 September 1974, an informal PEB found the applicant fit for duty.  The applicant nonconcurred and requested a formal hearing.

On 3 October 1974, the Chief, Family Housing Branch prepared a memorandum wherein he stated that the applicant was assigned to the Family Housing Branch during June of 1973.  For the first few months he performed his duties in a satisfactory manner; however, during the last five months of duty he was not allowed to drive a government vehicle and could not see well enough to inspect quarters.  His physical condition prevented regular scheduled assignments.

On 4 October 1974, the applicant was given a permanent profile of E-4, for uveitis, posterior, with correctable vision to 20/100.

On 9 October 1974, the PEB found the applicant fit for further military duty or separation because the evidence showed that there was no one condition nor a combination of conditions of an acute grave nature nor of sufficient deterioration to overcome a presumption of fitness which occurred immediately prior to or coincidentally with his application for voluntary retirement.

On 1 November 1974, the Disability Section, Retirement Branch, Army Military Personnel Center approved the findings of the PEB.  

On 25 November 1974, the applicant requested his PEB Counsel submit a rebuttal, wherein he stated that the applicant was unfit due to an eye condition for which he was awarded an E-4 profile in October 1974, in addition to being unfit for hypertensive cardiovascular disease.

On 9 January 1997, the Physical Disability Branch, U. S. Total Army Personnel Command, approved the PEB findings that he was physically fit for active military service.

On 30 November 1974, the applicant was discharged for length of service retirement, in pay grade E-8, after completing over 24 years of creditable active service.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.   In pertinent part, it states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Promotion to grade E-8 was centralized at Headquarters, Department of the Army in 1969.  A no-zone board was convened in December 1968 and adjourned in February 1969 which considered all personnel who held local recommended list status as of 30 September 1968.  The evidence of record does not show that his command recommended him for consideration by this board.  He was not considered by this board.  The first centralized Master Sergeant promotion selection board to consider zones of consideration (those  E-7s who had a date of rank of 31 December 1966 or earlier) was held in July 1969.  Soldiers were considered for promotion in their primary MOS.  The applicant was considered and selected for promotion by this board.

DISCUSSION:

1.  Considering all the evidence, allegations and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

2.  The applicant was promoted to Master Sergeant in his primary MOS of 76Z.  His EERs during the time periods he worked in this MOS gave him duty performance ratings of “outstanding” or “excellent,” evidence that shows he was not unduly affected by added stress or depression.

3.  The applicant requested voluntary retirement on 2 July 1973.  His EERs immediately preceding that period and the one received after that date all rated his duty performance as “outstanding” or “excellent.”  The rater on the last EER did comment that the applicant had problems because of a medical hold caused by his physical condition, but still stated he had potential for First Sergeant.

4.  The 3 October 1974 memorandum from the Chief, Family Housing Branch, where the applicant received his last EER, stated that he was assigned there in June 1973 and performed his duties in a satisfactory manner for the first few months, after the applicant had submitted his request for retirement.

5.  The “presumption of fitness” rule applies unless the preponderance of evidence shows he was physically unable to perform adequately the duties of his office, grade or rank.  The evidence shows that at the time of his request for voluntary retirement and for a few months thereafter he was able to perform his duties in a satisfactory or excellent manner.

6.  In view of the foregoing, there appears to be no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:  

SAC_____  JEV_____  LLS_____  GRANT 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




		Loren G. Harrell
		Director