RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070016263 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, promotion to sergeant first class (SFC)/E-7. 

2.  The applicant states, in effect, that he retired with 11 years time in grade as a staff sergeant (SSG)/E-6.  He contends his Noncommissioned Officer Evaluation Reports (NCOERs) were outstanding; he attended the Advanced NCO Course (ANCOC) in 1990; he held several platoon sergeant/E-7 positions where he excelled as a leader; and he pursued both civilian and military education.  He strongly feels that he was unjustly passed over for promotion on several occasions.

3.  The applicant contends that he was passed over for promotion because he received 2 NCOERs which stated he was overweight when in fact he was awaiting medical evaluation.  He was diagnosed with a hyperactive thyroid which was not diagnosed until after he retired.  He believes this caused his overweight condition and the Army failed to refer him to a medical officer.  

4.  The applicant also contends that he was recommended for a Meritorious Service Medal (MSM), but it was downgraded to an Army Commendation Medal (ARCOM) because he was not an SFC/E-7.  

5.  The applicant provides copies of his NCOERs; a copy of his DA Form 2-1 (Personnel Qualification Record); copies of his recommendations for awards; copies of letters of commendation; copies of his award certificates; copies of his certificates of achievement; and a partial copy of a Department of Veterans Affairs (DVA) Rating Decision from the DVA Regional Officer, Muskogee, Oklahoma.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant served in the Regular Army from 10 January 1978 through
30 June 1995.  He retired as an SSG/E-6 under the provisions of the voluntary early retirement program with 17 years, 5 months, and 21 days of creditable active service.  His record contains the DA Form 4187 (Personnel Action), dated 31 October 1994, wherein he requests voluntary early retirement under the provisions of the Fiscal Year 1992 Early Retirement Phase II.  

3.  A review of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that he was promoted to sergeant/E-5 with a date of rank of 2 July 1981 and to SSG/E-6 with a date of rank of 1 May 1984.  His military occupational specialty (MOS) was 13B (Cannon Crewmember).  On 4 September 1992, his MOS was changed to 13M (Multiple Launch Rocket System Crewmember).  

4.  The applicant held positions as a platoon sergeant/E-6 in Germany from
1 December 1986 through 3 January 1987 with the 12th U.S. Army Field Artillery Detachment (USAFAD).  He also performed duties as a platoon sergeant/E-6 from 7 July 1990 through 8 January 1992 with C Battery, 1st Battalion, 32nd Field Artillery in Germany.  His last SQT (Skill Qualification Test) score for
10 January 91 was 66. 

5.  The applicant completed ANCOC at Fort Sill, Oklahoma in 1990.  He completed a Master of Ministry Degree through the Trinity Evangelical Seminary of Florida on 1 December 1993.

6.  The only available reference in the applicant's record to being on the Army's weight control program is an 8 March 1994 report showing that the applicant was determined to be in compliance with the provisions of Army Regulation 600-9, and was removed from the weight control program effective 9 February 1994.  He weighed 202 pounds, and his body fat content was 22.48 percent, which was within the regulatory standards.  His height is shown as 69 inches and his weight as 202 pounds on his DA Form 2-1.  

7.  A review of the applicant's change of rater NCOER for the period August 1994 – April 1995 shows that he passed the Army Physical Training Test, and that he was within the Army's height/weight standards.  He weighed 208 pounds.  It is noted that he met body fat standards, that he displayed excellent physical condition, and that he maintained personal appearance and a professional attitude at all times.  He was recommended for promotion with his peers.  



8.  A review of the applicant's annual NCOER for the period February 1993 – January 1994 indicates that he needed improvement in physical fitness and military bearing, that he was not in compliance with the Army’s height/weight standards, and that he was undergoing a medical evaluation.  He weighed
222 pounds.  His senior rater indicated that he demonstrated potential to become a platoon sergeant.  

9.  The applicant's DA Form 2-1 indicates that his records were forwarded to the U.S. Army Enlisted Records and Evaluation Center (USAEREC) E-7 Selection Board on 4 March 1994.

10.  On 25 April 1995, the applicant's battalion commander recommended that the applicant be awarded the MSM for his excellent work at Fort Sill and as a retirement award.  However, the brigade commander recommended downgrading the award to an ARCOM, indicating that it was a "tough call, could go either way.  Thought an ARCOM would be more appropriate."  The Commander of III Corps Artillery approved award of the ARCOM.

11.  The applicant submitted a medical record – progress notes for 31 October 1996 showing he had a history of hypothyroidism – stable.  He was taking medication for his thyroid condition.  He weighed 234 pounds.  

12.  A medical note for 1 February 2005 shows the applicant had a history of high blood pressure, high cholesterol, and hypothyroidism.  He reported that he did not follow a careful diet to lower his cholesterol.  

13.  The applicant provided a partial copy of his DVA Rating Decision showing that he is service-connected for a thyroid condition, effective 12 August 1997.

14.  The applicant's service medical records are not available for review.  It appears that they are at the DVA Regional Office, Muskogee.

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) sets forth the basic guidance to the promotion board to select the best-qualified Soldiers who are best able to perform the duties at the next higher grade.  The board guidance is to look at the whole person concept as an established idea of judgment based on the entire record of qualities, qualifications, and accomplishments rather than on one single item as the overriding issue in determining selection or rejection for promotion.  The regulation further provides promotion consideration is based on meeting the minimum military and civilian 
education requirements, time in grade and time in service dates, and age restrictions established by law.  Army policy further states Soldiers must be qualified in their CPMOS to maintain promotion list status.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), states in pertinent part, the selection board will recommend a specified number of Soldiers by PMOS from the zones of consideration who are the best qualified to meet the needs of the Army.  The total number selected for each CPMOS is the projected number the Army needs to maintain its authorized-by-grade strength levels.

17.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states in pertinent part, Soldiers who are not selected for promotion will not be provided specific reasons for nonselection.  Soldiers may consult the statistical analysis portion of the promotion list to gain insight into the board results.  This is an analysis of the board results by MOS and CMF. The analysis provides insight into some of the areas that might have influenced the board's decision. The analysis does not include all areas represented in a Soldier's file and considered by the board.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), states in pertinent part, an error is considered material when there is a reasonable chance that had the error not existed the Soldier may have been selected.   The STAB considers records that were omitted by the regular board, where official changes were made to records prior to board consideration, an initial award of a Meritorious Service Medal, an annual or change of rater evaluation that was not processed and available for review by the promotion board, and an individual who was reclassified was considered for sergeant first class, master sergeant, or sergeant major.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was considered and not selected for promotion to SFC/E-7 because of his failure to comply with Army weight standards due to hypothyroidism has been noted and found to be without merit.  

2.  The applicant's DA Form 2-1 shows that his record was forwarded to the SFC/E-7 Selection Board on 4 March 1994.  It is likely that the promotion selection board reviewed his NCOER for the period February 1993 – January 1994 which indicated that he needed improvement in the area of physical fitness, that he weighed 222 pounds, and that he was undergoing a medical evaluation.  There was only this one NCOER that showed he was not within the Army's weight standards.
3.  The applicant's record also shows that he was removed from the Army weight control program on 9 February 1994 weighing 202 pounds and he was found to be within the Army's body fat standards.  His NCOER for the period August 1994 – April 1995 reflected that his weight was 208 pounds and that he still met body fat standards more than a year later.  As such, the annotation on his NCOER regarding his failure to comply with the Army's weight control program appears to be an accurate and fair statement.  It appears that from January to February 1994 he was able to lose 20 pounds and comply with the Army's weight standards.  Even if the applicant had an underlying undiagnosed thyroid condition as he contends, it apparently did not prevent him from losing the required weight and remaining within the Army's weight control standards.

4.  While it is unfortunate that the applicant was not selected for promotion by the Fiscal Year 1994 E-7 Selection Board, it is a well known fact that promotion selection boards must select the best qualified Soldiers to meet the needs of the Army within each MOS and that there are normally more Soldiers eligible for promotion than there are promotions available.  Accordingly, there are always Soldiers who are nonselected within a given MOS and this Board is not in a position to second-guess the selection boards that had the advantage of reviewing all of the records of Soldiers eligible in order to determine who was best qualified to meet the needs of the Army at that time.  Further, promotion selection boards do not provide the specific reasons for nonselection.  Soldiers may consult the statistical analysis portion of the promotion list to gain insight into the board results, but this analysis does not include all areas represented in a Soldier's file and considered by the board.  The applicant's presumption that he was nonselected because of his weight condition is a mere supposition and does not constitute evidence that an error or injustice occurred. 

5.  The applicant's service medical records were not available for review and are presumed to be at the DVA Regional Office in Muskogee.  However, his NCOER indicates that he was undergoing a medical evaluation and in the absence of evidence to the contrary, it is presumed that what the Army did in the applicant's case was administratively correct.  Therefore, there is no evidence that the applicant was diagnosed with a thyroid condition while he was on active duty.
 
6.  The applicant voluntarily requested retirement under the early retirement program.  Once he submitted his request, he would not have been eligible for consideration for future promotion.  It is unknown whether the applicant would have been selected for promotion to SFC/E-7 if he would have remained in the Army longer.  

7.  In regards to the applicant's contention that his retirement award was erroneously downgraded to an ARCOM, he has not provided any evidence that only SFC/E-7 and above were considered for award of the MSM.

8.  Inasmuch as the applicant was considered for promotion by a promotion selection board in 1994 and he has not shown that he was not properly considered by that board, there appears to be no basis to grant his request.

9.  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

__xxx___  __xxx___  __xxx___  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.



							XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070016263



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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