IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080003041 


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, correction of his records to show he was not erroneously promoted to the rank of sergeant major and to retire as a sergeant major.

2.  The applicant states, in effect, that the administrative reduction action of
1 October 2007, which reduced him from E-9 to E-8 should be reversed and that the promotion ruling of "erroneous" should be overturned in order to support retirement as an E-9.  The applicant adds that the administrative reduction that occurred during a medical board and the subsequent ruling of erroneous promotion effectively prevented continued service at the promoted grade regardless of the findings of the medical board.  If administrative error on behalf of the Army occurred during promotions, retirements and medical board proceedings they should not be utilized to penalize the service member.  

3.  The applicant provides in support of his application 32 pages of documents which contain his Enlisted Record Brief (ERB), Order Number 349-301 (promotion orders), Leave and Earnings Statement, DA Form 3349 (Physical Profile), memorandum of disability processing, Medical Evaluation Board (MEBD) proceedings, Presumption of Fitness Memorandum, three Physical Evaluation Board (PEB) proceedings, Orders 75-2 (Rescinded), and Orders 11-16 (Retirement Orders). 


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 
19 September 1985, and continuously served on active duty.  The applicant spent 17 years of his military career in Special Forces.  The applicant's records indicate that his lower back problems began in 1989, when he experienced a hard landing on a runway while conducting a night airborne operation as a member of the 82nd Airborne Division, Fort Bragg, North Carolina.  Radiology studies taken show degenerative disc disease L4 and L5.  The record further shows he was promoted to master sergeant (MSG)/pay grade E-8 on 1 June 2000.

2.  On 19 October 2001, the applicant's initial neck injury was sustained as a passenger of a helicopter which crashed under enemy fire while on a mission in Afghanistan.  In March 2002, the applicant underwent a fusion of his cervical spine and neck surgery.  

3.  In March 2005, the applicant requested and received a 4-year Critical Skills Retention Bonus (CSRB).  The CSRB commitment was through 18 March 2009. 

4.  On 27 March 2005, while on a mission during Operation Iraqi Freedom the applicant reinjured his back during a military exercise.  The impact resulted in a herniated disc and multiple exacerbations of the lower back.   

5.  A Memorandum for the Commander, Human Resource Command, dated 
27 February 2006, shows that the applicant requested cancellation of his CSRB commitment to apply for retirement.  The memorandum indicated that the applicant requested a retirement date of January 2007.  The applicant had been offered a civilian position to train Soldiers from all branches of service on combat medical procedures for battlefield survival.  The applicant acknowledged that he understood that he would be required to pay back a prorated amount of any unearned CSRB payment based on the length of the CSRB active duty obligation actually served.  On 28 February 2006, the applicant's request for cancellation of CSRB was approved.  The applicant was counseled and acknowledged that he was required to pay back a prorated amount of any unearned portion.

6.  Headquarters, 1st Special Forces Operational Detachment-DELTA (Airborne), Fort Bragg, NC Orders 75-2, dated 3 April 2006, retired the applicant, apparently effective 28 February 2007.

7.  The Fiscal Year 2006 Department of the Army Command Sergeant Major (CSM/SGM/Sergeant's Major Course (SMC)) selection board convened on 
1 June 2006.  The promotion selection list was subsequently approved and released on 1 August 2006.  

8.  Order Number 349-301, dated 15 December 2006, promoted the applicant from master sergeant to sergeant major effective 1 January 2007.  It stated that promotion is not valid and will be revoked if he is not in a promotable status on the effective date of promotion.

9.  On 26 January 2007, the applicant was issued a physical profile for chronic neck/back pain.

10.  Orders 75-2, dated 16 March 2007, rescinded orders 93-7 pertaining to the applicant's retirement.

11.  On 2 July 2007, an MEBD convened at Womack Army Medical Center, Fort Bragg, North Carolina.  The MEBD diagnosed the applicant with having chronic neck pain with discectomy and fusion of C5-C6 cervix, chronic low pain with a hemilaminectomy, discectomy and foraminotomy of L4-L5 disc, chronic bilateral hip pain and chronic right shoulder pain.  The MEBD determined that the applicant did not meet retention standards and referred the applicant's case for evaluation by a PEB.  The applicant agreed with the board findings and recommendation.

12.  On 11 September 2007, a PEB convened at Walter Reed Army Medical Center, Washington D.C.  The PEB found the applicant's condition fit by presumption.  The PEB adds that disability benefits are for Soldiers whose military service is terminated because of physical limitations so severe that they are unable to reasonably perform the duties of their grade and MOS.  Medical and personnel records indicated the applicant entered the disability system after he had already processed for, or was within 12 months of, retirement/
separation for other than physical disability reasons and that the applicant performed his duties commensurate with his grade and specialty.  The PEB adjudicated the applicant's case under the presumption of fitness rule as stated in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 3-2b, and Department of Defense Instructions (DoDI) 1332.38, paragraph E3.P3.5.  The PEB was provided a copy of the applicant's retirement orders retiring him for length of service effective 28 February 2007.  Per DoDI 1332.38, paragraph E3.P3.5, the revocation of these orders, or extending the effective retirement date to 1 December 2007, does not negate the presumption of fitness.  The PEB stated that the presumptive period began no later than 3 April 2006.  The applicant's MEB was dated 16 July 2007, which confirms that the applicant's conditions began within the presumptive period.  The presumption of fitness holds that the applicant was already processing for or was within 12 months of his retirement and or separation for other than physical 
disability reasons.  The PEB found the applicant's conditions were not acute, life- threatening conditions that would overcome presumption.  As a result, the PEB found the applicant fit.  The written PEB proceeding was not signed by the applicant.    

13.  Order Number 278-300, U.S. Army Human Resource Command, dated 
5 October 2007, revoked Order Number 349-301, dated 15 December 2006, promoting the applicant to sergeant major.   

14.  On 15 October 2007, a PEB convened at Walter Reed Army Medical Center, Washington, D.C.  The PEB again found the applicant fit by presumption.

15.  On 10 December 2007, a PEB convened at the Walter Reed Army Medical Center, to reconsider the 15 October 2007 proceedings based on additional information provided.  The applicant's diagnoses included low back pain secondary to surgery with near full range of motion limited by pain; chronic pain of the bilateral hip, near full range of motion limited by pain; and cervical pain with near full range of motion with limited pain.  Based on a review of the applicant's medical evidence of record, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and primary specialty.  Although some changes in his medical condition may be anticipated, for the purpose of adjudicating his disability compensation his condition was considered stabilized at the degree of severity.  Therefore, the PEB recommended permanent disability retirement.  Since the applicant had  service-connected medical conditions, it was recommended that he should contact the Department of Veterans Affairs to learn about available benefits such as disability compensation, rehabilitation programs, etc.  The further concluded that the applicant's case was adjudicated in accordance with the presumption of fitness rule.  The PEB determined that the applicant's lumber, bilateral hip, and cervical pain overcome the presumption of fitness and caused the applicant to be unfit for duty prior to the beginning of his presumptive period which began on
3 April 2006.  Evidence shows the applicant performed his duties well prior to his application for retirement.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent and that he be retired by reason of permanent disability.  On 20 December 2007, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.   

16.  On 16 January 2008, another revised PEB proceeding convened at Walter Reed Army Medical Center.  The PEB, after reviewing the medical evidence of record, concluded the applicant's medical condition prevented satisfactory performance of duty in his grade and primary specialty.  The PEB found the applicant physically unfit and recommended permanent disability retirement with a combined rating of 40 percent.  

17.  On 28 March 2008, the applicant was honorably retired from the Army by reason of permanent physical disability in the rank and grade of MSG/pay    grade E-8 in accordance with paragraph 4-24b (1) of Army Regulation 635-40.  The  DD Form 214 he was issued confirms he completed a total of 22 years,       6 months, and 9 days of creditable active military service.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time of the applicant’s selection for promotion to SGM/E-9, prescribes the enlisted promotions and reductions function of the military personnel system.  
Section 1, Paragraph 4-2(6), stated that, to be eligible for promotion consideration, a Soldier must not be ineligible to reenlist because of Declination of Continued Service Statement, retirement, or court-martial before the Headquarters, Department of the Army promotion board convenes. governed the process of removal from a centralized promotion list.  

19. Army Regulation 600-8-19, paragraph 4-16a(2)(e) states a Soldier will be deleted from the centralized promotion list without further board action when the Soldier has an approved retirement.  Paragraph 4-16a(2)(g) states a Soldier will be deleted from the centralized promotion list without further board action when promotion is considered an error (no exception authorized).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his record to show that he was not erroneously promoted to the rank of sergeant major and to retire as a sergeant major were carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant apparently had a civilian job offer and requested and received an approval to retire with a projected date of 
28 February 2007.  His retirement orders were issued in April 2006.

3.  The evidence of record also show that on 1 June 2006, the Fiscal Year 2006 Command Sergeant Major /Sergeant's Major Course Selection Board met and the applicant was erroneously selected for promotion to sergeant major because according to Army Regulation 600-8-19, he was not eligible for consideration for promotion.  Promotion orders should never have been published and he should not have been promoted to sergeant major either conditionally or otherwise.  Unfortunately, orders were erroneously published promoting the applicant to sergeant major effective 1 January 2007.  It was not until four weeks after he was erroneously promoted to sergeant major that the applicant was issued a permanent profile and referral into the Army's Physical Disability Evaluation System (PDES).

4.  When the applicant was referred into the PDES he had already been erroneously considered for/promoted to sergeant major.  He was not denied promotion to sergeant major due to his medical issues and, therefore, he is not entitled to the requested relief.  

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.



      _________XXX__________
               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)                                         AR20080003041



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003041



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1