IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:   AR20080011831


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 her husband's records be considered by a Special Selection Board for promotion from the rank of lieutenant colonel (LTC) to the rank of colonel (COL) and advanced on the retired list to the rank of COL.

2.  The applicant states, in effect, that had the former service member (FSM) not become terminally ill, he would have remained on active duty and fulfilled his requirements for promotion to the rank of COL.  She adds that the FSM is now retired with a permanent, service-connected disability.

3.  The applicant provides copies of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 214 (Certificate of Release or Discharge from Active Duty), two promotion letters, orders to active duty, and retirement orders as additional documentary evidence in support of this application.

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 FSM's record shows that at the time of his retirement, he was a member of the United States Army Reserve.  He possessed military occupational specialty (MOS) 63A (General Dentistry).  The highest rank he achieved was LTC/pay grade O-5.

3.  The FSM's DD Form 214 for the period ending 15 November 1969 shows that he was inducted into the Army of the United States on 23 February 1968.  Upon completion of advanced individual training, he was awarded MOS 11F (Infantry Operations and Intelligence Specialist).  He served on active duty for a period of 1 year, 8 months, and 23 days.  During this period he served in the Republic of Vietnam for 11 months and 29 days.  The highest rank he achieved was specialist five/pay grade E-5.  On 15 November 1969, the FSM was released from active duty with an honorable characterization of service and transferred to the United States Army Reserve Control Group (Annual Training).

4.  Headquarters, Fifth United States Army, Fort Sam Houston, Texas, letter orders, dated 18 May 1978, appointed the FSM as a Reserve Commissioned Officer of the Army as a first lieutenant/pay grade O-2.  He was assigned to the Dental Corps branch and awarded MOS 63A.

5.  Headquarters, Fifth United States Army, Fort Sam Houston, Texas, letter orders, dated 21 August 1980, promoted the FSM to the rank of captain/pay grade O-3 effective 12 May 1979 with date of rank 12 May 1979.

6.  United States Total Army Personnel Command, Saint Louis, Missouri, letter orders, dated 27 March 2002, promoted the FSM to the rank of major/pay grade O-4 effective 11 March 2002 with date of rank 19 May 1986.

7.  United States Army Reserve Personnel Command, Saint Louis, Missouri, letter orders, dated 27 March 2002, promoted the FSM to the rank of LTC effective 24 November 2002 with date of rank 24 November 2002.

8.  90th Regional Support Command, North Little Rock, Arkansas, Orders 
M-041-0017, dated 10 February 2003, ordered the FSM to active duty for a period of 365 days in support of Operation Enduring Freedom with a report date of 11 February 2003.

9.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 August 2003, shows the FSM developed the first symptoms of an illness on or about 22 April 2003 while serving on active duty in Kuwait.  He was medically evacuated to the Landstuhl Army Medical Center located in Landstuhl, Germany, to receive treatment.  The FSM was medically evacuated from the Veterans Administration hospital located in North Little Rock, Arkansas, and admitted to Walter Reed Army Medical Center located in Washington, D.C., on 4 May 2003 to receive treatment for a disease that could result in permanent partial disability. 
The FSM's case was referred to a Medical Board for evaluation.

10.  Headquarters, III Corps and Fort Hood, Texas, memorandum, dated 10 August 2003, subject:  Line of Duty Investigation - [FSM's name, SSN, LTC], shows that following an investigation, the FSM's medical condition was determined to have occurred in the line of duty.

11.  United States Army Human Resources Command, Saint Louis (HRC-STL), Missouri, Orders A-02-401408, dated 17 February 2004, ordered the FSM to active duty for the purpose of an active duty medical extension and attached him to the United States Army Medical and Dental Activity located at Fort Hood, Texas.  The orders indicated a period of active duty of 120 days commencing 11 February 2004 and ending 9 June 2004.

12.  United States Army HRC-STL, Missouri, Orders, A-02-401408A01, dated 14 June 2004, amended Orders A-02-401408 by increasing the period of active duty to 149 days with an ending date of 8 July 2004.  United States Army 
HRC-STL, Missouri, Orders A-02-401408A02, dated 24 June 2004, further amended Orders A-02-401408 by increasing the period of active duty to 179 days with an ending date of 7 August 2004.

13.  Headquarters, III Corps and Fort Hood, Texas, Orders 174-0202, dated 22 June 2004, released the FSM from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability.  The orders retired the FSM from the United States Army Reserve in the rank of LTC with a disability rating of 70 percent effective 8 July 2004.  The FSM's DD Form 214 for the period ending 8 July 2004 shows he was retired accordingly.

14.  The Department of the Army Human Resources Command Integrated Web Services database shows the FSM had a mandatory removal date of 30 November 2003 based upon the fact that he would reach the age of 60 on 24 November 2003.

15.  Department of the Army Human Resources Command records show that on 11 July 2006 the Fiscal Year 2006 Selection Board convened to consider United States Army Reserve Dental Corps LTCs with a date of rank of 1 April 2002 through 31 March 2003 for promotion to COL.

16.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer United States Army Reserve Soldiers.  Paragraph 7-3 of this regulation provides that field grade officers who are not sooner removed for another reason will be removed when they reach maximum age.  The removal date will be the last day of the month in which they reach age 60.  Paragraph 7-14.1 of this regulation provides that policy governing exceptions to removal from service for age authorizes the retention of Reserve Component officers in an active status in certain Army Medical Department areas of concentration (including Dental Corps) until age 68.  The Commander, 
HRC-STL, operating on behalf of the Deputy Chief of Staff, G-1, is the approval authority for retention under this section.  Subject to the following guidance, an officer who meets the following applicability criteria may be retained beyond his or her mandatory removal date for age:

	a.  Retention must be in the best interest of the Army.

	b.  The specialty of the officer requesting retention must be short in Total Army mobilization requirements and, for troop program unit (TPU) officers, the specialty must be short of Total Army-wide TPU requirements.  The Commander, HRC-STL (AHRC-PAT-RR), is responsible for determining which specialties meet this retention criteria using Mobilization Personnel Structure and Composition System data for mobilization requirements and the most recent Total Army or TPU strength data, as appropriate.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

18.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

19.  Army Regulation 635-40, paragraph 3-7, states that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. 

20.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the U.S. Army Reserve.  This regulation specifies that completion of a minimum 3 years time in grade is required before promotion from LTC to COL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's records should be considered by a Special Selection Board for promotion from the rank of LTC to the rank of COL and advanced on the retired list to the rank of COL was carefully considered.

2.  Evidence shows the FSM had an established mandatory release date of 30 November 2003 based upon the fact that he would reach the age of 60 on 24 November 2003.  Although Army Regulation 140-10 provides for exceptions to the mandatory release date for reaching the maximum age of 60, there is no evidence in the FSM's record, and the applicant has failed to provide any evidence, that the FSM either requested or was granted an exception to this policy.  In the absence of evidence to the contrary, administrative regularity is presumed in this case.  Therefore, it is presumed that had the FSM not developed an illness on or about 22 April 2003, he would have been released from active duty for reaching the maximum age 60 no later than 30 November 2003.

3.  Army Regulation 635-40 provides that a Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

4.  Evidence shows the FSM was retained on active duty for the purpose of receiving treatment for a disease that could result in permanent partial disability and was subsequently entered into the Physical Evaluation System.  Evidence also shows that following consideration by a Physical Evaluation Board, the FSM was determined to be permanently partially disabled and retired from the United States Army Reserve in the rank of LTC with a disability rating of 70 percent effective 8 July 2004.

5.  Evidence shows the FSM's date of rank for promotion to LTC is 24 November 2003.  Army Regulation 135-155 specifies that completion of a minimum 3 years time in grade is required before an officer may be promoted from LTC to COL.  Department of the Army Human Resources Command records show that a Dental Corps LTC with a date of rank of 24 November 2002 was not eligible for consideration by a selection board for promotion to COL until 11 July 2006 when the Fiscal Year 2006 board convened to consider LTCs with a date of rank of 1 April 2002 through 31 March 2003.

6.  Based on the foregoing, it is presumed that had the FSM not developed an illness on or about 22 April 2003, he would have been released from active duty no later than 30 November 2003 prior to becoming eligible for promotion consideration.  Additionally, following his active duty medical extension the FSM was subsequently retired on 8 July 2004 prior to becoming eligible for promotion consideration.

7.  There is no evidence that shows the FSM was considered for, selected for, or promoted to the rank of COL.  Therefore, the FSM is not entitled to correction of his records to show he was promoted to the rank of COL, retired in the rank of COL, or advanced on the retired list to the rank of COL.

8.  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)                                         AR20080011831



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ABCMR Record of Proceedings (cont)                                         AR20080011831



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