PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002077976


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his major (MAJ) date of rank (DOR) be adjusted to 16 January 2001.

3. The applicant states, in effect, that he was promoted to MAJ on 15 March 2002, with a backdated DOR of 1 August 1997. The reason for backdating his DOR was that he had been on the Temporary Disability Retired List (TDRL) from March 1996 through January 2001. He claims that the 1997 DOR puts him immediately into the zone for consideration for promotion to lieutenant colonel (LTC), which is virtually an impossible situation for promotion. He states that in order for him to be competitive for promotion to LTC, he requests his MAJ DOR be changed to 16 January 2001, which is the date he returned to active duty from the TDRL. He claims this would provide him the opportunity to prove himself as a MAJ, and it would serve the Army’s best interests by allowing him to obtain the leadership experience expected of a LTC. He indicates that the 2002 Judge Advocate General Corps (JAGC) LTC promotion selection board is scheduled to convene in September 2002, and in the event his request cannot be acted upon by this time, he requests that any reference to that or any subsequent promotion selection board be removed from his Official Military Personnel File (OMPF). However, if he is selected for promotion to LTC by the Board, he would not require this action.

4. The applicant states that in February 1995, he was diagnosed with Waldenstrom’s Macroglobulinemia, a rare blood cancer. He was told that the disease was incurable with a life expectancy of five years. Most people diagnosed with this condition are in their 50’s or 60’s, and it was unusual for someone his age, 35, to be diagnosed. This made his odds of succumbing to the disease, as opposed to another ailment, almost certain. But, it also opened the door for a more aggressive and potentially curative treatment, a bone marrow transplant (BMT). At the time he was diagnosed, he was a captain (CPT) stationed in the Pentagon. Because of the risks associated with the disease, he was placed on the TDRL in March 1996. He considers himself fortunate to have been in the Army and the JAGC when he was diagnosed with this disease. At the time, his wife was pregnant with their second daughter. Upon retiring, his family and he were well cared for by the Army and the Department of Veterans Affairs (DVA). He was also blessed with a younger sister whose bone marrow matched his, and in April 1996, they traveled to Seattle, Washington, for a BMT at the Seattle DVA Hospital, which is recognized as a world class facility for this procedure. Although rare, he survived the disease and the cancer was gone.

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5. The applicant states that when he was first diagnosed with the cancer, his life caved in and he believed that his life was over. After his recovery, it became possible for him to think the impossible, returning to a career as an attorney and Army officer, which became his goal. While retired, he worked as a stay at home Dad. He also served as a support group leader and board member for the International Waldenstrom’s Macroglobulinemia Foundation, and as the Parent Teacher Association (PTA) president for his daughter’s school. In addition, he returned to work part-time, as an attorney for the Rails to Trails Conservancy, and he exercised regularly.

6. The applicant indicates that while he was on the TDRL, his condition was reevaluated every 18 months. The maximum time allowed on the TDRL is five years, and in August 2000, the Physical Evaluation Board (PEB) gave him a final disability rating of 20 percent, down from his original 100 percent. He did not think the board knew how to deal with his case, and it was basically throwing it back to him to prove himself one way or the other. He appealed the decision and was found fit for duty. Upon returning to active duty in January 2001, the JAGC Personnel, Planning, and Training Office, Office of The Judge Advocate General (OTJAG), determined that his DOR to CPT would remain the same and not be adjusted for his time on the TDRL. This was based on a regulatory requirement that officers placed on the TDRL retain their active duty DOR. Because his CPT DOR was in August 1990, it required that he be considered for promotion to MAJ by a Special Selection Board (SSB), and fortunately because he had enough service as a CPT, he was selected for promotion to MAJ. In support of his application, he provides a letter of support from the OTJAG, Chief, Personnel, Plans, and Training Office, and a letter from the Staff Judge Advocate (SJA), Military District of Washington (MDW), Fort McNair, Washington D.C., his current supervisor.

7. The applicant’s military records show that was appointed a first lieutenant in the JAGC of the United States Army Reserve (USAR), and entered active duty on 7 January 1990. On 1 August 1990, he was promoted to CPT, while serving on active duty.

8. In February 1995, while serving as a JAGC CPT at the Pentagon, the applicant was diagnosed with a rare form of cancer. As a result of this illness, he was released from active duty and placed on the TDRL in March 1996.

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9. In January 2001, the applicant was found fit for duty after spending almost
5 years on the TDRL. At that time, he was released from the TDRL and returned to active duty. He retained his active duty CPT DOR, and as a result was considered for promotion by a SSB. In March 2002, he was selected for promotion to MAJ with a backdated DOR of 1 August 1997. His DOR to MAJ places him in the zone of consideration for promotion to LTC, and he will be considered for promotion to that grade by the 2002 JAGC LTC promotion selection board scheduled to convene in September 2002.

10. The OTJAG Chief, Personnel, Plans, and Training, provides a letter of support of the applicant’s request for a change to his MAJ DOR. It states that the JAGC strongly supports the applicant’s request to adjust his MAJ DOR to
16 January 2001, to coincide with the date he returned to active duty from the TDRL. This OTJAG official confirms the applicant was placed on the TDRL in 1996, based on being stricken with a rare form of cancer, and being given less than five years to live. The OTJAG official goes on to state that the applicant fought the cancer with a demanding program of treatment that included a BMT, and against all odds beat the disease. He was declared fit for duty, and returned to active duty on 16 January 2001. His return to active duty after 5 years on the TDRL is nothing short of a miracle, and through his actions he has demonstrated the initiative, courage, and love for the Army characteristic of the Army’s best leaders.

11. The OTJAG official also indicated that in accordance with applicable regulations, the applicant’s active duty CPT DOR was restored upon his return to active duty from the TDRL. As a result, he was considered and selected for promotion to MAJ and given a backdated DOR of 1 August 1997. The consequence of this backdated DOR is that he is now in the primary zone of consideration for promotion to LTC, and will be considered for promotion by the 2002 JAGC LTC promotion selection board that convenes in September 2002. However, because of his extended absence on the TDRL, he simply does not have the breadth of experience and number of Officer Evaluation Reports (OERs) necessary to make him competitive for promotion to LTC. Upon returning to active duty, the applicant spent his first year in medical treatment fighting a secondary cancer, and since February 2002, he has served as the Chief, Claims in the SJA office at Fort McNair. As a result, he will have only one OER as a MAJ in his records when he is considered for promotion to LTC. By contrast, most of his peers have five years of assignments and OERs as a MAJ.

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12. The OTJAG official also opines that it is nearly certain that the applicant will not be selected for promotion if considered based on his current MAJ DOR, and that adjusting the applicant’s MAJ DOR to coincide with the date he returned to active duty from the TDRL would be in the best interest of the JAGC and the Army. This adjustment would provide the applicant the opportunity to serve in the field grade assignments that would allow him to prove himself as a MAJ and gain the experience necessary to be competitive for promotion to LTC, which is the only fair and just thing to do. The OTJAG official concludes by stating that the applicant is a credit to the Army, and an inspiration to all those around him. He is an exceptional officer who deserves the opportunity to become competitive for promotion, and the JAGC strongly urges the Board to approve his request.

13. The SJA, Fort McNair, a colonel, the applicant’s current supervisor, also provides a letter of support. He states the he strongly supports the applicant’s request to change his MAJ DOR to give him the opportunity to be competitive for promotion to LTC on a level field with his contemporaries. The SJA comments that the applicant has worked for him twice, first as an action officer in the OTJAG, and for the past six months as the Chief of the MDW claims office. The SJA indicates that the applicant’s performance in both these positions was stellar.

14. The SJA also opines that it is extremely unlikely that with only one OER in six years, covering only a few months as a MAJ, the applicant will be competitive for promotion at the September 2002 JAGC LTC promotion selection board. His contemporaries will have four or five OERs as MAJs serving in a variety of assignments over as many years. The SJA also comments that much of the complimentary comments he made in reference to the applicant could be said of others among the best JAGC officers. However, because of his almost unbelievable victory over two lethal forms of cancer, the applicant is no ordinary officer, and the ordeal he suffered through allowed that to be demonstrated.

15. The SJA concludes by indicating that he does not mean to be melodramatic, but he does not know of any other way to express what needs to be said. The applicant stared down doom and despair without blinking, and he did it twice. He did not just have a brief encounter, that would have been tough enough. He faced it everyday for five years, and than again for another year. The remarkable strength of character he showed confronting these challenges with courage, endurance, faith, love of family, optimism, and good cheer are unique. After what he faced, the prospect of being passed over for promotion to LTC must seem a small thing. However, it is not a small matter for a soldier who so strongly desires to serve. The applicant deserves the opportunity to compete fairly for promotion, and the Army should grab the chance to benefit from the future service of an officer of his mettle, capabilities, and experience.

16. Army Regulation Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It supports the objectives of the Army's officer promotion system, which include filling authorized spaces with the best qualified officers. It also provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility. Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.

17. Paragraph 1-27 of the promotion regulation provides the policy guidance pertaining to TDRL returnees. It states, in pertinent part, that officers placed on the active duty list from the TDRL, in the grade they held when placed on the TDRL, will keep that same ADOR and that such officers are treated as though they had no break in service. It further indicates that failure twice to be recommended by promotion boards to MAJ may result in separation and that officers cannot decline the promotion consideration in the zones of promotion consideration, which are defined by active duty DOR.

18. On 10 August 2000, based on the recommendation of officer promotion officials of the Total Army Personnel Command (PERSCOM), this Board ruled favorably on a similar case (AR2000035787).

CONCLUSIONS:

1. The regulation states, in effect, that officers returning to active duty from the TDRL will retain their DOR and be treated as though they had no break in service. However, the Board finds that application of this rule would surely place the applicant in a significant competitive disadvantage with his peers and result in an injustice to him. Therefore, in the interest of equity and justice, the Board concludes an exception to policy is warranted in this case.

2. The Board concurs with the opinion of OTJAG that the lack of OERs in the applicant’s file would not allow a promotion selection board to accurately rate his promotion potential in comparison to his peers, and that this would place him at a competitive disadvantage. Thus, the Board finds that it would be appropriate to adjust the applicant’s DOR to 16 January 2001, which would account for his time on the TDRL and allow him the time to prove himself as a MAJ and gain the experience necessary to compete for promotion to LTC.

3. In addition, if the applicant is considered and not selected for promotion to LTC by the September 2002 JAGC LTC promotion selection board, the Board also concludes that it would be appropriate, based on its recommendation to change his MAJ DOR to 16 January 2001, to remove all references to his being considered and not selected for promotion by this board from his OMPF.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by adjusting the MAJ DOR of the individual concerned to 16 January 2001, to account for the time he spent on the TDRL; by placing a non-prejudicial memorandum in his record to explain the gap in his OER rating periods; and if he is not selected for promotion to LTC, by removing all references to his being considered and not selected for promotion by the September 2002 JAGC LTC promotion selection board from his OMPF.

BOARD VOTE:

__JNS__ __DPH___ __WDP__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___ John N. Slone _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077976
SUFFIX
RECON
DATE BOARDED	2002/09/12
TYPE OF DISCHARGE
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 224	112.0200
2.
3.
4.
5.
6.