IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080002431 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his two time nonselection memorandums for promotions to 1LT be expunged from his record; that he be paid back pay and allowances for the period 6 February 2002 to 28 September 2004, as a 2LT/O-1 (second lieutenant); that he be paid for active duty time from 29 September 2004 through 18 October 2006 as an O2-E, minus the E-4 pay he was paid; and that his time in service include the period from 5 September 2001 through 28 September 2004.  This should include at least 18 months of active duty.  

2.  The applicant states, in effect, that the Physical Evaluation Board (PEB), on 5 September 2001, found him unfit for duty and stated:  "His impairment with respect to military duties is total.  His social and industrial impairment is estimated as considerable."  However, he reentered active duty as an E-4 on 29 September 2004 and submitted an application to this Board in January 2005.  He submitted an appointment packet which was approved and he took the Oath of Office on 19 October 2006.  “In 2007 graduated from the Basic Officer Leaders Course (BOLC) two and three and was promoted to 1LT upon graduation.”

3.  The applicant provides several documents from his OMPF (Official Military Personnel File) such as; a copy of his PEB Proceedings; two promotion memorandums; and other related documents in support of his request.




CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT/O-1) on 31 July 1998, with prior military service.

2.  The applicant was considered and not selected for promotion to first lieutenant by the 2000 Army Reserve Components Selection Board (RCSB) which convened on 5 June 2000.  

3.  The applicant appeared before a PEB on 1 September 2005.  He provided a copy of his formal PEB proceedings.  The PEB diagnosed him as having a cognitive disorder, not otherwise specified as evidenced by deficits in executive functioning; visual and visuomotor memory and integration; confrontational naming and verbal fluency, motoric speed, strength and coordination; and self-monitoring.  These deficits were directly related to the severe traumatic brain injury he sustained in his August 1998 accident and stood in stark contrast to his premorbid level of functioning.  His impairment with respect to military duties was total.  His social and industrial impairment was estimated as considerable.  

4.  The PEB stated that based on a review of the medical evidence of record, his medical condition prevented satisfactory performance of duty in his grade and primary specialty.  His case was adjudicated as a nonduty related case under the provision of Department of Defense (DOD) Directive 1332.18.  His PEB included a voting member of the Reserve Components (RC).  The PEB found the applicant unfit for military duty and recommended that his case be referred for disposition under RC regulations.  The PEB adjourned the same day.  The applicant nonconcurred with the finding of the PEB and submitted an appeal on 10 September 2001. 

5.  On 9 October 2001, the President of the PEB responded to the applicant's rebuttal to his formal PEB.  The President stated that his rebuttal did not provide any new substantiated medical information not previously considered.  The PEB affirmed the decision of the informal PEB and found him unfit for duty.  The President stated that although the applicant provided no new objective medical evidence, his case was carefully reviewed.  Based upon that review, the PEB found no basis for any change in its action in his case and reaffirmed its previous findings.  The President concluded that the applicant's entire case file, including his rebuttal, had been forwarded to the US Army Physical Disability Agency (PDA) for review and that he would be advised of any changes. 



6.  On 11 October 2001, the PDA reviewed the applicant's case.  The PDA noted the applicant's disagreement with the findings of the PEB and reviewed his entire case file.  The PDA concluded that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The PEB's findings and recommendation were supported by substantial evidence and were therefore affirmed.  His case was returned to the AR-PERSCOM for final disposition.  The PDA stated that he could be eligible for medical care through the Department of Veterans Affairs (VA) if they determined that his illness or injury was service-connected.  Furthermore, he could apply for a disability rating through the VA for 
any of these service-connected illnesses or injuries.  The DOD PDES, however, operating under a different set of laws than the VA, could only compensate Soldiers for any service connected or permanent aggravated condition(s) that caused their separation and only for the degree of impairment at the time of their separation. 

7.  The applicant was released from an active status on 5 November 2001, under the provisions of Army Regulation 135-175, for medical unfitness, in the rank of 2LT.  

8.  A review of the applicant's OMPF shows he performed no active or Reserve service from 6 November 2001 to 28 September 2004.

9.  After a break in service, the applicant reenlisted in the Regular Army on 29 September 2004, for 3 years, in the rank and pay grade of SP4/E-4.  

10.  While serving on active duty, as a SPC, the applicant applied to the Officer  Personnel Management Directorate (OPMD), Reserve Appointments Branch, Special Review Board, Army Human Resources Command (AHRC)-St. Louis and was selected for reappointment in the USAR.

11.  The applicant was released from active duty on 18 October 2006, in the rank and pay grade of E-4.

12.  The applicant was reappointed in the USAR on 19 October 2006 as a   2LT/O-1.  He accepted the appointment on 19 October 2006 and took the Oath of Office on the same date. 

13.  The applicant was considered and not selected for promotion to first lieutenant by the 2007 RCSB which convened on 1 March 2007.  



14.  The applicant completed the BOLC on 3 July 2007.  

15.  The applicant was promoted to 1LT/O-2 with an effective date and date of rank of 3 July 2007.

16.  Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training, exceeding 90 days.  Paragraph      4-4 pertains to the removal of USAR officers from an active status.  It states, in pertinent part, that an officer will be removed from an active status for medical unfitness.  When found to be medically unfit to perform active duty, except when the officer has incurred a disability in the line of duty and is eligible for processing under the provisions of pertinent medical regulations. 

17.  Army Regulation 600-37 sets forth policies and procedures to:  (a) authorize placement of unfavorable information about Army members in their individual official personnel files; (b) to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and (c) to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from their official personnel files.  Paragraph 7-2 states that once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  

19.  Table 2 of the regulation pertains to the composition of the OMPF.  It states that letters of notification to officers, considered for promotion but not selected, would be filed on the service(s) fiche of the OMPF.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was appointed in the USAR as a 2LT on 31 July 1998.  He was considered but not selected for promotion to 1LT by the 2000 RCSB which convened on 5 June 2000.  He appeared before a formal PEB and was diagnosed as having a cognitive disorder.  His medical condition prevented satisfactory performance of his duty in his grade and specialty.  The PEB found the applicant unfit and recommended he be referred for disposition under RC regulations.

2.  The applicant nonconcurred with the PEB recommendations and appealed.  The President reviewed his rebuttal and stated that his rebuttal did not provide any new substantive medical information not previously considered and that this case was fully reviewed.  The President found no basis for any change in its action in his case and reaffirmed it previous finding.  

3.  The PDA reviewed the applicant's case and concluded that his case was properly adjudicated by the PEB.  He was released from active status for medical unfitness effective 5 November 2001.

4.  After a break in service, the applicant reenlisted in the Regular Army on 29 September 2004.  He was released from active duty on 18 October 2006.  He applied for reinstatement as an officer and was selected for reappointment in the USAR.  He was reappointed as a 2LT/O-1 effective 19 October 2006 and took the Oath of Office on the same date.

5.  The applicant was considered but not selected for promotion to 1LT by the 2007 RCSB which convened on 1 March 2007.  He completed the BOLC on 3 July 2007 and was promoted to 1LT on the same date.

6.  The applicant requests, in effect, removal of his two time nonselection memorandums for promotion to 1LT be expunged from his OMPF.  His request was carefully considered.  It is noted that they were properly issued by the appropriate authority informing him of his nonselections.  The evidence shows that they were properly filed in his OMPF on his service fiche, in the GA (General Administration) section, in accordance with regulatory authority.  

7.  The applicant claims that he should be paid back pay and allowances for the period 6 February 2002 to 28 September 2004.  The evidence shows that the applicant had a break in service from 6 November 2001 to 28 September 2004.  Therefore, he is not entitled to any back pay and allowances as a 2LT/O-1.

8.  The applicant also claims that he should be paid for his active duty time from 29 September 2004 through 18 October 2006 as an O2-E, minus the E-4 pay he was paid.  The evidence clearly shows that he served as an E-4 and not as an officer in the rank of 2LT.  He is therefore not entitled to be paid as an O2-E for this period of service.  

9.  The applicant claims that his time in service includes the period from 5 September 2001 through 28 September 2004 which should include at least 18 months of active duty.  During the period 5 September 2001 through 5 November 2001, he was pending a PEB and physical disability processing and was released from an active status on 5 November 2001.  He performed no active or Reserve service from 6 November 2001 to 28 September 2004.  Therefore, the applicant is not entitled to have the period from 5 September 2001 through 28 September 2004 counted as active duty time.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

11.  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

____x___  ___x____  ____x___  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.




       _    __x_____   ___
       CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.





























ABCMR Record of Proceedings (cont)                                         AR20080002431



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ABCMR Record of Proceedings (cont)                                         AR20080002431



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