RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007 
	DOCKET NUMBER:  AR20060008821 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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, back pay for his promotion to sergeant first class/pay grade E-7 (SFC/E-7) for the period 1 August 2003 through 15 May 2006.  

2.  The applicant states, in effect, that when he accepted his promotion on 1 August 2003, he was being treated for an injury he received in the line of duty (LOD).  The applicant contends that he was never promoted or counseled that he was ineligible for promotion to sergeant first class based on his medical condition.  

3.  The applicant continues that under the current Army Regulation 600-8-19 (Enlisted Promotions and Reductions) Soldiers are allowed to be promoted while injured and that paragraph 7-20f(3), states that the promotion criteria for Soldiers who are already promotable and pending a medical evaluation board (MEB) or a physical evaluation board (PEB) referral will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion. 

4.  The applicant provides copies of Department of the Army, Headquarters III Corps, Fort Hood, Texas, Permanent Orders 136-3, dated 16 May 2002, directing his Temporary Change of Station move to White Sands Missile Range, New Mexico in support of Operation Noble Eagle; E-mail, dated 1 July 2003, containing a promotion acceptance memorandum to SFC/E-7, signed by the applicant on 30 July 2003; DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 5 October 2003; Memorandum for Orthopedic Surgery Approval from the Chief, Spine Surgery Service, dated 24 November 2003; Roster for Texas Outstanding Service Medal Task Force Confidence, Permanent Orders #135-001, undated; Memorandum for Record, subject: Surgery Date, from the Chief, Orthopedic Spine Surgery, dated 29 June 2004; Memorandum concerning patient care from the Department of Orthopedic/
Rehabilitative Service, dated 15 November 2005; DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings), dated 28 April 2006; U.S. Army Physical Disability Agency, Washington, DC, release from duty and placement of the Temporary Disability Retired List (TDRL), Orders D123-01, dated 3 May 2006; Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas Orders 130-1010, dated 10 May 2006, discharging the applicant from the Army National Guard and placing him in the Retired Reserve, effective 16 May 2006; Army National Guard Retirement Points History Statement, dated 17 May 2006; and Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas, Orders 153-1027, dated 2 June 2006, promoting the applicant to SFC/E-7 in support of this application. 
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 16 May 2006, the date of his release from duty and placement on the Temporary Disability Retired List (TDRL).  The application submitted in this case is dated 16 June 2006. 

2.  The applicant enlisted in the Army on 14 June 1984.  He continued to serve in the Regular Army and the Texas Army National Guard (TXARNG) through a series of reenlistments until he was honorably released from duty because of physical disability and placed on the TDRL on 16 May 2006.

3.  The applicant's records are incomplete; however, the available records show the applicant was ordered to active duty in support of Operation Joint Forge, Bosnia-Herzegovina (SFOR7) on 7 February 2002 as a member of the Army National Guard.  The applicant's records also shows that he served in military occupational specialty (MOS) 12B (Combat Engineer) while in the rank of staff sergeant/pay grade E-6.  

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 April 2001, shows he was honorably released from active duty and transferred to the TXARNG.  The applicant's DD Form 214 also shows he completed 1 year, 2 months, and 24 days of Net Active Service this Period.  The applicant's DD Form 214 shows he had 13 years and 25 days of Total Prior Active Service and 7 years, 5 months, and 2 days of Total Prior Inactive Service. 

5.  On 5 May 2002, the applicant was ordered to active duty in support of Operation Enduring Freedom as a member of the TXARNG.  

6.  The applicant's DD Form 214, dated 11 September 2002, shows he was honorably released from active duty and transferred to A Company 1st Battalion of the 141st Infantry, San Antonio, Texas.  The applicant's DD Form 214 also shows he completed 4 months and 7 days of Net Active Service this Period. 

7.  A Memorandum for selection of promotion, from the Enlisted Promotion System (EPS) that was sent to the applicant on 1 July 2003 via e-mail, notified him that he was selected for promotion to SFC/E-7.  The memorandum also shows that the applicant signed accepting the conditional promotion and requirements on 30 July 2003.


8.  This memorandum further shows the requirements for promotion and notified those Soldiers who received a conditional promotion that they would have their orders revoked and their names removed from the centralized list if they failed to meet the NCOES requirements.  The memorandum also shows that the applicant acknowledged that he was currently injured in the line of duty and was waiting a fitness evaluation.

9.  A Memorandum for Orthopedic Surgery Approval, dated 24 November 2003 from the Department of the Army, Headquarters, U.S. Army Medical Department Activity, Fort Hood, Texas, shows that the applicant was placed on the waiting list for surgery to correct a condition that falls outside of retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The memorandum also stated that convalescent leave would be recommended, that a profile would be issued for protection during the applicant's recovery and rehabilitation period, and that an MEB would be initiated if the Soldier is not afforded the opportunity to correct his condition by the command.

10.  A Memorandum for Record, dated 29 June 2004 from the Chief, Orthopedic Spine Surgery, Department of the Army, Headquarters, U.S. Army Medical Department Activity, Fort Hood, Texas, shows that the applicant was scheduled for surgery on 19 July 2004.

11.  A Memorandum of Record, dated 15 November 2005 from the Department of Orthopedic/Rehabilitation Services, Department of the Army, Headquarters, U.S. Army Medical Department Activity, shows that the applicant was listed as a patient at the Orthopedic Spinal Surgery Clinic at Darnall Army Community Hospital, Fort Hood, Texas.

12.  The memorandum shows the applicant was originally evaluated in 2002 and all appropriate non-operative management was attempted.  The memorandum shows the applicant underwent surgical intervention on 19 July 2004 with expected recovery and rehabilitation time of approximately 12-18 months.  The memorandum shows the applicant was not eligible for an MEB due to his evolving medical condition.  The memorandum further shows the applicant's 
condition as stabilized, an MEB was initiated, and the applicant would continue to receive appropriate pay and benefits until his MEB was finalized.  The applicant was subsequently referred to a Physical Evaluation Board (PEB).

13.  On 28 April 2006, the applicant concurred with the findings of the PEB proceedings which diagnosed him with chronic low back pain, chronic pain left shoulder and left knee, and flexion contracture of the right knee.  The PEB found that the applicant was physically unfit to continue in military service based on a review of the objective medical evidence of record.  The findings determined that the applicant’s medical and physical impairment prevents him from reasonably performing his duties required by his grade and military specialty.  The findings also determined that the applicant be placed on the TDRL with reexamination during March 2007.

14.  Department of the Army, U.S. Army Physical Disability Agency, Washington, DC Orders D123-01, dated 3 May 2006, show the applicant was released from duty 16 May 2006 because of a physical disability incurred as a result of injury while entitled to receive basic pay and placement on the TDRL with a 30 percent disability rating.  The orders also show that the applicant was authorized promotion to SFC/E-7 in accordance with Section 1372 of Title 10, United States Code, and that he was retired in the rank of sergeant first class/pay grade E-7.

15.  Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas Orders 130-1010, dated 10 May 2006 honorably discharged the applicant from the Army National Guard effective 16 May 2006 and assigned him to the Retired Reserve with "Gray Area Retiree Benefits."  The applicant was retired in the rank of staff sergeant/pay grade E-6.

16.  Texas Military Forces, Army National Guard Adjutant General's Department, Austin, Texas Orders 153-1027, dated 2 June 2006 shows that the applicant was promoted to SFC/E-7, effective 15 May 2006.  

17.  In the processing of this case, a staff advisory opinion was obtained from the 
Chief, Army National Guard Bureau, Army National Guard Readiness Center, Arlington, Virginia, dated 7 February 2007.  The Chief, Army National Guard Bureau stated that the applicant submitted a request for correction of his records for entitlement to back pay based on his 30 April 2003 acceptance for promotion to the rank and pay grade of SFC/E-7.  

18.  The Chief, Army National Guard Bureau continues that the applicant requested his record be corrected based on new regulatory guidance as of April 2005, which states that a Soldier can be promoted although they are injured.  The Chief, Army National Guard Bureau contends that Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas Orders, dated 3 May 2006, released the applicant from duty effective 16 May 2006 because of a 30 percent physical disability and authorized promotion of the applicant to the rank of SFC/E-7 in accordance with Title 10, USC, Section 1372.


19.  The Chief, Army National Guard Bureau contends that Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas Orders130-1010, dated 10 May 2006, honorably discharged the applicant effective 16 May 2006, in accordance with National Guard Regulation 600-200, paragraph 8-27m. 

20.  The Chief, Army National Guard Bureau states that Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas Orders
153-1027, dated 2 June 2006, promoted the applicant to SFC/E-7 in accordance with Army Regulation 600-8-19, chapter 7, paragraph 21e.  There are no orders or evidence in the available records that the applicant was promoted to SFC/E-7 prior to 2 June 2006.

21.  The Chief, Army National Guard Bureau argues that under the current version of Army Regulation 600-8-19, dated 9 November 2006, it does not include paragraph 7-21e.  However, paragraph 7-20f(3), states that, for promotion criteria, Soldiers who are already promotable and pending MEB/PEB referral will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion.  

22.  The opinion concluded that even though paragraph 7-20f(3) of Army Regulation 600-8-19, dated 9 November 2006 shows that a Soldier can be promoted while injured, it does not state that the DOR should be backdated to when the Soldier was originally selected for promotion.

23.  The opinion continues that the TXARNG followed regulatory guidance by promoting the applicant to SFC/E-7 on 15 May 2006.  Since his promotion effective date and DOR are the same he should only receive retired pay in this grade from that date forward.

24.  The Chief, Army National Guard Bureau recommended disapproval of the applicant's request due to insufficient evidence.  

25.  On 19 December 2006, a copy of the advisory opinion was forwarded to the applicant through his counsel for rebuttal.  There is no evidence in the available records which shows he responded to the advisory opinion.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  Paragraph 3-5c, states that the fact that a Soldier has a condition listed in the Veterans Administration Schedule for Rating Disabilities (VASRD) does not equate to a finding of physical unfitness.  An unfitting, or ratable 
condition, is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.

27.  Paragraph 1-10(3)u of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) dated 1 November 1991, which was in effect at the time of the applicant's discharge states that Soldiers in the ranks of private (PV1)/E-1 to master sergeant (MSG)/E-8 are nonpromotable to a higher grade when a PEB determines that a Soldier is no longer qualified for continued service.

28.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) dated 9 November 2006, provides in paragraph 7-20f(3) that Soldiers undergoing medical evaluation processing by Military Occupational Specialty Medical Retention Board and a Medical Evaluation Board (MMRB/MEB) will be considered for promotion board action.  However, they cannot be selected for promotion until they have been found qualified by a board.  Soldiers who are already promotable and pending referral to an MMRB, MEB, or PEB will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion in accordance with paragraph 1-20 (Promotion of Soldiers pending referral to a military occupational specialty/medical retention board, medical evaluation board, or physical evaluation board).  Currency of the Soldier's physical examination is a function of eligibility for immediate reenlistment or extension in the NGR 600-200, chapter 7, and AR 40-501.  This regulation is not retroactive.

29.  Title 10, U.S. Code (USC), Section 1372 (Grade on Retirement for Physical Disability: members of Armed Forces), provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: (1). The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.  (2). The highest temporary grade or rank in which he served satisfactorily, as determined b the Secretary of the armed force from which he is retired.  (3). The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  (4). The temporary grade to which he would have been 


promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to back pay for promotion to SFC/E-7 based on the fact that he was undergoing medical treatment at the time of his selection for promotion on 1 August 2003 was carefully considered and determined to be without merit.

2.  Evidence of records show the applicant signed his acceptance on 30 April 2003 for promotion to SFC/E-7; however, there is no evidence and the applicant has not provided sufficient evidence showing that he served in the position of SFC/E-7 or that the TXARNG promoted him to SFC/E-7 prior to his discharge on 16 May 2006.  

3.  The applicant argues that under current standards he would have been granted his promotion when he was selected by the Enlisted Promotion System in August 2003.  The regulation, in effect at the time, clearly states that those Soldiers deemed medically unfit by a PEB were not eligible for promotion.  The applicant’s records clearly show that he was undergoing medical treatment and evaluation at the time the results of the 2003 promotion list was received and therefore, was not eligible for promotion in August 2003 when he was selected for promotion by the Enlisted Promotion System.  Based on the foregoing, there is no evidence that the applicant is entitled to retroactive promotion and no basis to grant the applicant's request for back pay and allowances. 

4.  Title 10 of the United States Code provides that the Soldier will be retired and placed on the retired list in the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

5.  Orders show that on 28 April 2006, the applicant was approved for release from duty because of a physical disability incurred as a result of injury while entitled to receive basic pay and placement on the TDRL with a 30 percent disability.  Orders show that on 2 June 2006, the applicant was authorized promotion to SFC/E-7, effective 15 May 2006.  Based on the fact that the applicant was promoted to SFC/E-7 on 15 May 2006 and placed on the Retired Reserve list in that grade, his records are correct as currently constituted.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LMD___  _YM____  _GJP____  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.





__Yolanda Maldonado__
          CHAIRPERSON




INDEX

CASE ID
AR20060008821
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.