MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2002067243

         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.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		Member

         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)

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APPLICANT REQUESTS: In effect, that he be promoted to the rank and pay grade of specialist/E-4 (SPC/E-4) and be provided all associated benefits.

APPLICANT STATES: In effect, that while serving in the Army, he was unjustly not considered for promotion to SPC/E-4 after he became eligible. As a result, he was denied benefits when he was discharged by reason of physical disability. He claims that despite being eligible for promotion, and the fact that his record of service suggests that he was deserving of promotion, there is no evidence in his record to show, he was ever considered for promotion to SPC/E-4. In support of his application, he provides a copy of a page from a previous Board decisional document that contains his statement that he was deceived into believing that his failure of his Army Physical Fitness Test (APFT) disqualified him from receiving the Army Good Conduct Medal (AGCM); a copy of a memorandum from his unit commander, dated 24 March 1992, that certifies that he was not pending elimination from the service under the provisions of the Uniform Code of Military Justice (UCMJ); copies of award certificates for the AGCM and Army Commendation Medal (ARCOM); and a letter of commendation, dated 24 July 1989, that congratulates him for being a distinguished graduate from the United States Army Signal Center and Fort Gordon, Georgia.

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

On 2 March 1989, he entered active duty in the Regular Army and he served for
3 years, 4 months, and 27 days until 28 July 1992, at which time he was honorably separated, by reason of physical disability with severance pay.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in Item 18 (Appointments and Reductions), that he was promoted to PFC/E-3 on
1 March 1990, and that this was the highest rank and pay grade he attained and held while serving on active duty.

The applicant’ Military Personnel Records Jacket (MPRJ) contains no orders or other documents that suggest he was ever recommended for, selected for, or promoted to a rank and pay grade above PFC/E-3 while serving on active duty. There is also no indication or personnel action form on file that would indicate he was recommended for promotion to SPC/E-4 by his unit commander.

The record does confirm that the applicant was involved in a motor vehicle accident in September 1989, and that subsequently he underwent processing under the Physical Disability System to determine his eligibility for continued service in his rank and military occupational specialty (MOS). This medical processing was based on the following diagnosed medical conditions: a diagnosed familial essential tremor-severe, that existed prior to his entry into service; and common migraine headaches - moderate to severe, that originated in September 1989.
The record also shows that a suspension of favorable personnel actions (FLAG) was initiated on the applicant on 20 November 1991, based on his failure of the APFT. It further verifies that in March 1992, he was not working in his MOS due to his physical profile limitations. The FLAG action remained in effect until
1 April 1992.

The separation document (DD Form 214) issued to the applicant on the date of his separation confirms that he held the rank and pay grade of PFC/E-3 on the date of his discharge. This document also shows that the applicant earned the following awards during his active duty tenure: ARCOM; National Defense Service Medal; Army Service Ribbon; Marksman Marksmanship Badge (Rifle); Army Superior Unit Award; Army Lapel Button; Southwest Asia Service Medal with 3 bronze service stars; and the Kuwait Liberation Medal. In addition, as a result of action by this Board, a correction to his separation document
(DD Form 215), dated 13 September 2001, was issued that added the AGCM to the list of authorized awards listed in his separation document.

Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the Army’s enlisted promotion policy. Paragraph 1-10 contains guidance on placing members in a non-promotable status. It specifies, in pertinent part, that a soldier is in a non-promotable status when under a Flag action or when undergoing a medical proceeding to determine their ability to perform in their MOS. The regulation further confirms that the criteria for promotion to SPC/E-4 without waiver is 26 months time in service and 6 months time in grade.

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

1. The Board notes the applicant’s contention that he was unjustly denied consideration for promotion to SPC/E-4 and he should be promoted to this rank and pay grade based on his record of service. However, it finds insufficient evidence to support this claim.

2. Although specific dates are not available, the evidence of record confirms that the applicant underwent processing under the physical disability system based on two medically diagnosed conditions. One condition that existed prior to his entering the Army, and the second one that originated in September 1989. Additionally, he was under a Flag action from November 1991 through April 1992, based on his failure to pass the APFT. Both these factors would have placed him in a non-promotable status.

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3. Notwithstanding the fact that there is no evidence to confirm that the applicant’s unit commander formally considered him for promotion to SPC/E-4 or that formal action was taken to deny the applicant’s promotion upon his becoming eligible, in the opinion of the Board, there is sufficient evidence to conclude the applicant was in a non-promotable status based on his undergoing medical proceedings to determine his fitness for service in his MOS and based on his being under an imposed Flag action. Therefore, there is no error or injustice related to his promotion consideration or non-selection for promotion to SPC/E-4, and it concludes there is insufficient evidence to justify the requested relief.

4. 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 this requirement.

5. In view of the foregoing, there is 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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE__ __BJE__ __REB___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002067243
SUFFIX
RECON
DATE BOARDED	2002/04/18
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1992/07/28
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Physical Disability with severance pay
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.