RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070008312 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 correction of his records to show that:

	a.  He was medically retired instead of discharged.

	b.  He should have been promoted from staff sergeant (SSG/E-6) to sergeant first class (SFC)/E-7 on his last day in the Army.

2.  The applicant states that:

	a.  He was discharged from the Army for having Type I Diabetes, a disease he did not have when he enlisted in the Army.  He further adds that he served the Army admirably and to the best of his abilities for over nine years, had an unblemished record, and received high marks during his career; yet, when he got sick, the Army decided to chapter him out instead of medically retire him. 

	b.  He was a promotable SSG/E-6 and therefore should have been promoted to SFC/E-7 in accordance with paragraph 1-20 of Army Regulation 600-8-22 (Enlisted Promotions and Reductions).

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Copy of his Enlisted Record Brief (ERB), dated 11 July 2005.

	b.  Memorandum, dated 17 December 2004, from Human Resources Command (HRC), Alexandria, Virginia, notification of selection for promotion to SFC by the Fiscal Year (FY) 2005 SFC Promotion Selection Board.

	c.  Department of Veterans Affairs (DVA) Rating Decision, dated 9 November 2005.

	d.  DA Forms 2166-8 (NCO Evaluation Report), March 2002 through April 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 19 April 1996.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13P (MLRS Lance Operations Fire Direction Specialist).  
2.  The applicant's records further show that he served in Iraq in support of Operation Iraqi Freedom during the period 9 April 2003 to 1 July 2003.

3.  On 28 September 2004, the applicant was diagnosed with Type I Diabetes and as a result of this illness, was issued a permanent DA Form 3349 (Physical Profile).  The attending physician indicated on the form that the applicant required refrigeration for insulin storage, access to showers to maintain hygiene due to frequent injections and finger-sticks, and a diabetic diet.

4.  In a memorandum, dated 14 November 2004, the applicant's immediate commander stated that the applicant's condition caused assignment limitations and based on those limitations, he was unable to perform duties required of his grade and/or MOS.  

5.  On 8 December 2004, a medical evaluation board (MEB) determined that the applicant was unfit for duty due to Type I diabetes requiring insulin and recommended the applicant be referred to a physical evaluation board (PEB).  

6.  On 14 December 2004, the applicant was notified by memorandum that he was found qualified for promotion to SFC/E-7 by the FY2005 SFC Promotion Selection Board, but could not be selected for promotion in his primary MOS.  The Board, however, found him qualified in MOS 13W (Field Artillery Meteorological Crewmember).  Additionally, the memorandum informed the applicant that his integration onto the SFC/E-7 promotion standing list was contingent upon his reclassification into MOS 13W and completion of required training.  

7.  On 9 March 2005, a PEB convened and found that the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) code 7913 and granted a 20 percent disability rating.  The PEB also recommended the applicant be separated from the Army with severance pay, if otherwise qualified.

8.  On 6 April 2005, the applicant submitted a rebuttal disagreeing with the PEB findings and recommendations.  He stated in his rebuttal statement that the PEB should take into consideration his accomplishments during his nine-year military career and that he did not think it was fair to separate him based on an incurable disease.  



9.  In a memorandum, dated 11 April 2005, the PEB informed the applicant that his rebuttal did not contain new, substantive medical information.  The PEB reaffirmed its decision that the applicant was unfit with a disability rating of 20 percent and forwarded the applicant's case to the Physical Disability Branch for final disposition.

10.  On 15 July 2005, the applicant was honorably discharged from the Army in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability/severance pay.  The DD Form 214 he was issued confirms he completed a total of 9 years, 2 months, and 27 days of creditable active military service.

11.  The NCO Evaluation Reports submitted by the applicant show that he was consistently rated among the best and with a superior potential for promotion and/or service in positions of greater responsibility.

12.  The DVA Rating Decision statement submitted by the applicant shows that the applicant had filed a disability claim and that based on the evidence submitted, the DVA evaluated the applicant's medical condition and made rating decisions to each of the applicant's claimed conditions.

13.  The applicant's records do not show that he had completed formal or informal training in MOS 13W.

14.  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 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation 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.  The regulation also states that, 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 the Soldier is fit. 

16.  Paragraph 8-4 of Army Regulation 635-40 requires a commander to refer a Soldier to the responsible medical treatment facility when the unit commander believes that Soldier is unable to perform the duties of his or her office, grade, rank or rating because of physical disability.  This provision of regulation requires that the request will be in writing and will state the commander’s reasons for believing that the soldier is unable to perform his or her duties

17.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time of the applicant’s selection for promotion to SFC/E-7, prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 1-20 governed the promotion of Soldiers pending referral to a military occupational specialty/medical retention board, medical evaluation board, or physical evaluation board.  It states that Soldiers pending referral to an MEB or PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.  Per the provisions of 10 USC 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlements to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the Soldier's separation date.

18.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to retirement instead of disability separation and that he should have been promoted to SFC/E-7 upon his separation for disability.

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation for disability was 
in compliance with law and regulation.  The applicant rebutted the PEB rating decision that resulted in no change in his disability rating or the decision to separate him.

4.  Evidence of record shows that the applicant was not selected for promotion to SFC/E-7 in his primary MOS 13P.  He was found "qualified" for selection for promotion in MOS 13W.  Additionally, the HRC memorandum stated that upon completion of reclassification action and scheduled training, the applicant would be integrated onto the promotion selection list in MOS 13W.  Since there is no evidence that the applicant was reclassified or completed the scheduled training, he was therefore never integrated onto the SFC/E-7 promotion list. 

5.  In view of the foregoing, the applicant is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __swf___  __rsv___  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.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008312
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0900
2.
108.0000
3.

4.

5.

6.