RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060006331


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be permanently retired in
the rank of master sergeant (MSG/E-8) instead of sergeant first class
(SFC/E-7).

2.  The applicant states, in effect, that his rank of SFC/E-7 should be
adjusted to MSG/E-8 due to his brain tumor which was removed.  He was also
informed that he would be promoted to MSG prior to his medical retirement.
He wanted to remain on active duty for 3 more years and then retire.  He
was unaware that his tumor would totally change his way of life.

3.  The applicant provides a copy of his promotion orders to MSG and
reduction orders to SFC in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 4
August 1981, for training in military occupational specialty (MOS), 11B
(Light Weapons Infantryman).  He continued to serve through a series of
continuous reenlistments.

2.  He was promoted to SFC/E-7 with an effective date and date of rank
(DOR) of 1 October 1993.

3.  The applicant was in a motor vehicle accident in 2002.  As part of
the evaluation for this, he underwent a CT scan (computed tomography
scan) of the head which incidentally revealed a large frontal lobe cyst.
Surgical removal was recommended, and in May 2002 it was removed.
Pathology showed it to be a non-malignant glioependymal cyst.   He later
began to have spells of shaking in his arms, a tight feeling in his
shoulders, and a loss of consciousness.  He was put on medication, but he
has been slow to process things, and his ability to concentrate and
remember was impaired.

4.  On 12 March 2003, the applicant's case was considered by an MEB
(medical evaluation board).  The MEB diagnosed the applicant as having
frontal lobe glioependymal cyst, a seizure disorder secondary to the
first diagnosis; and frontal lobe neuropsychiatric deficits, also
secondary to the first diagnosis.  The applicant did not desire to
continue on active duty.  The findings and recommendations of the board
were approved and he was referred to a PEB (physical evaluation board)
for further adjudication.  The applicant agreed with the MEB's findings
and recommendations.

5.  On 5 May 2003, the applicant appeared before a PEB, at Fort Sam
Houston, Texas.  The PEB concluded that the applicant’s medical condition
prevented reasonable performance of duties required by grade and specialty.
 The PEB found the applicant unfit and recommended a combined rating of
40 percent and that he be placed on the permanent disability retirement
list (PDRL).  The PEB indicated that his retirement was not based on a
disability from injury or disease received in the LOD as a direct result of
armed conflict or caused by an instrumentality of war and incurring in the
LOD during a period of war as defined by law.  The PEB also indicated that
the applicant's disability did not result from a combat related injury.
The applicant concurred with the PEB recommendations and waived a formal
hearing of his case.

6.  On 10 June 2003, Order Number 161-14 was published by the U.S. Total
Army Personnel Command promoting the applicant to MSG/E-8 with an
effective date and DOR of 1 July 2003.  These orders indicated that,
"Promotion is not valid and will be revoked if the Soldier concerned is
not in a promotable status on the effective date of promotion."

7.  On 17 July 2003, Order Number 198-4 was published by the U.S. Total
Army Personnel Command revoking Order Number 161-14.  The authority for the
revocation was Army Regulation 600-8-19, paragraph 1-17.

8.  On 5 September 2003, the applicant was permanently retired by reason
of physical disability, under the provisions of Army Regulation 635-40,
paragraph
4-24B(1).  He was placed on the Retired List, effective 6 September 2003,
in the rank of SFC.  On the date of his separation for disability
reasons, he had completed 22 years, 1 month, and 2 days active Federal
service.

9.  The applicant's retirement orders are unavailable for review.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides
in paragraph 1-17 that when a Soldier has been erroneously promoted, and
has received pay at the higher grade, a determination of "de facto status"
may be made only to allow the Soldier to keep any pay and allowances
received at the higher grade.

11.  Paragraph 4-8 (Service Obligation), of the same regulation, stated
that Soldiers promoted to grades SFC, MSG, and SGM (Sergeant Major) will
incur a 2-year service obligation.  Service obligation will be from the
effective date of the
promotion before voluntary nondisability retirement, unless Soldiers are in
one of the following categories:  (a) Eligible for retirement by completing
30 or more years active Federal service; (b) Already eligible through prior
service for a higher grade at time of retirement; (c) Age 55 or older; and
(d) Expiration of term of service.

12.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier's medical status and duty limitations insofar as duty is
affected by the Soldier's status.  A decision is made as to the Soldier's
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

13.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

14.  Paragraph 4-24 of Army Regulation 635-40 pertains to the disposition
of Soldiers by the Army Human Resources Command (AHRC) upon the final
decision of the Physical Disability Agency.  It states that AHRC will
dispose of the case by publishing orders or issuing proper instructions to
subordinate headquarters, or return any disability evaluation case to the
United States Army Physical Disability Agency for clarification or
reconsiderations when newly discovered evidence becomes available and is
not reflected in the findings and recommendations.  Subparagraph 4-24b(1)
applies to permanent retirement for physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was serving in the rank and pay
grade of SFC/E-7 when he appeared before an MEB on 12 March 2003.  The MEB
recommended the applicant be referred to a PEB.  He did not desire to
continue on active duty and was referred to a PEB.  The PEB concluded, on 5
May 2003, that the applicant's medical condition prevented reasonable
performance of duties required of his grade and specialty.  The PEB found
him unfit and recommended a combined rating of 40 percent and that he be
permanently retired for disability reasons.  He concurred with the PEB
recommendations, waived a formal hearing of his case, and was placed on the
PDRL on 5 September 2003.

2.  When the applicant was found not fit for duty in his MOS, 11B, he was
determined not to be fully qualified for promotion to the next higher grade
in this MOS.  Orders for his promotion to MSG/E-8 were published on 10 June
2003 and were revoked on 17 July 2003, in accordance with the applicable
regulation. Therefore, since he was not fully qualified for promotion to
MSG prior to his placement on the PDRL, he is not now qualified for
reinstatement to that rank and pay grade.

3.  The applicant contends that he was informed that he would be promoted
to MSG prior to his medical retirement.  However once he was found not fit
for duty in his MOS, he was no longer in a promotable status.  He also
contends that he wanted to remain on active duty for 3 more years and then
retire.  However, the statement he made after his MEB, "I do not desire to
continue on active duty," contradicts this contention.  The applicant
concurred with the recommendations of the MEB and with the recommendations
of the PEB and waived a formal hearing and was place on the PDRL
accordingly.

4.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI __  __RDG__  __EM___  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.




                                  ____Bernard P. Ingold______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006331                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20030905                                |
|DISCHARGE AUTHORITY     |AR  635-200, chapter 12                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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