IN THE CASE OF:
BOARD DATE: 18 February 2009
DOCKET NUMBER: AR20080011838
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 that Puerto Rico National Guard Element, Joint Forces Headquarters Orders 142-533, San Juan, Puerto Rico, dated 21 May 2008, be revoked.
2. The applicant states his promotion to sergeant (SGT)/pay grade E-5 was revoked based on a weight control flagging action dated after the orders promoting him to sergeant. He states that he met all the requirements for promotion, including height and weight standards, in August 2006. He states he was number six on the promotion list and six Soldiers who were promoted from that list did not have sufficient time in grade or more promotion points than he did. He states he started a weight program in April (2007) and he was not flagged until August (2007). He states he did not receive a height and weight test in June (2007). He also states he should get a CAP (intended meaning not known), a driver's badge, and some kind of recognition for an incident that occurred on 25 July 2007, in Iraq.
3. The applicant provides, in support of his application, copies of orders promoting him to sergeant, orders revoking his promotion to sergeant, a DA Form 268 (Report to Suspend Favorable Personnel Actions [Flag]), a DA Form 4187 (Personnel Action), his orders to active duty, three DA Forms 2823 (Sworn Statement), two promotion lists, a memorandum from the 240th Military Police Company, four additional pages from his official military personnel file (OMPF), and 3 copies of VA 21-22 (Appointment of Veterans Service Organization as Claimant's Representative).
CONSIDERATION OF EVIDENCE:
1. The applicant's military personnel records show he enlisted in the Puerto Rico Army National Guard (PRARNG) on 2 December 1987. He has served continuously in the PRARNG since that date.
2. On 4 August 2006, the applicant was ordered to active duty effective 6 August 2006.
3. The applicant submitted an E-5 Promotion List, dated 30 January 2006, from the Puerto Rico National Guard Element, Joint Forces Headquarters. The applicant is shown as number six on the promotion list.
4. The applicant submitted an E-5 Promotion List, dated 6 June 2007, from the Puerto Rico National Guard Element, Joint Forces Headquarters. The applicant is shown as number three on the promotion list.
5. On 31 August 2007, the applicant was flagged, effective 29 August 2007, due to his not being in compliance with Army Regulation 600-9 (The Army Weight Control Program).
6. On 4 December 2007, the applicant was retained on active duty for completion of medical care and treatment.
7. On 4 January 2008, the applicant was notified that, having completed the required years of service, he would be eligible for retired pay upon application at age 60.
8. Puerto Rico National Guard Element, Joint Forces Headquarters Orders
141-507, dated 20 May 2008, promoted the applicant to sergeant with an effective date of 28 August 2007.
9. Puerto Rico National Guard Element, Joint Forces Headquarters Orders
142-533, dated 21 May 2008, revoked the above orders promoting the applicant to sergeant.
10. On 11 August 2008, the applicant was again retained on active duty for completion of medical care and treatment. The end date for this period of active duty is 4 May 2009.
11. In the processing of this case, an advisory opinion, dated 26 November, 2008, was provided by the National Guard Bureau (NGB), Arlington, Virginia. The NGB official stated that a DA Form 5500 (Body Fat Content Worksheet), dated 14 January 2007, reflected the applicant's weight as 246 pounds and his body fat content as 32 percent. According to the form the applicant was 41 years of age and 67 inches tall. The NGB official stated the maximum allowable weight for a 41-year old male who is 67 inches tall is 176 and the maximum body fat content for age 40 and over is 26 percent. The NGB official stated the applicant was not in compliance with Army Regulation 600-9 (The Army Weight Control Program) and was therefore not promotable. On 2 December 2008 the applicant was provided a copy of the advisory opinion and given 30 days to submit matters in rebuttal; however, to date, no response has been received.
12. The applicant provided three sworn statements, including his own, concerning events occurring on 25 July 2007 in Iraq. However, there is no evidence the applicant was recommended for an award based on this incident.
13. The applicant provided a memorandum, dated 13 October 2007, from the 240th Military Police Company, Baghdad, Iraq requesting the Drivers Badge be awarded to Soldiers on an attached list. The referenced attached list was not included in the evidence provided by the applicant.
14. The applicant referred to an award of "CAP" in his self-authored statement. This is not a known acronym for any current awards listed in the Army awards regulation. Therefore, this issue will not be discussed further in these Proceedings.
15. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part for award of the Driver and Mechanic Badge with Driver-W (wheeled vehicle) Bar. To receive the award, an individual must qualify for and possess a U.S. Government Motor Vehicles Operators Identification Card, be assigned duties and responsibilities as a driver or assistant driver for a minimum of 12 consecutive months, or during 8000 miles have no Army motor vehicle accident or traffic violation recorded on the Equipment Operators Qualification Record, or perform satisfactorily for a minimum of one year as an active qualified driver instructor or motor vehicle driver examiner.
16. Paragraph 3-1d of Army Regulation 600-9 provides, in pertinent part, that personnel who are overweight are nonpromotable (to the extent such nonpromotion is permitted by law).
17. Table 3-1 (Weight for height table [screening table weight]) of Army Regulation 600-9 shows the maximum allowable weight for a male over 40 years of age whose height is 67 inches is 176 pounds. Table 3-2 (Maximum allowable percent body fat standards) shows the maximum body fat standard for a male over 40 years of age is 26 percent.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence to show why the applicant was not promoted from the promotion list dated 30 January 2006.
2. The DA Form 5500, dated 14 January 2007, shows the applicant was 70 pounds overweight and exceeded the maximum allowable body fat standard by
6 percent. Therefore, the applicant was in a nonpromotable status since
14 January 2007 as provided for in Army Regulation 600-9 due to his overweight status and exceeding his maximum allowable body fat standards. There is no available evidence to show the applicant has come within standards since
14 January 2007.
3. The actual date of the flagging action, 31 August 2007, does not change the fact that the applicant was not in a promotable status on 28 August 2007.
4. The orders for promotion were issued 9 months after the date of the flagging action. The reason for the delay in issuing the promotion orders until 20 May 2008 is unknown. However, this does not change the fact the applicant was in a nonpromotable status since 14 January 2007. It is reasonable to conclude the error in issuing the promotion orders was immediately discovered and the orders were revoked on the following day.
5. 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 that requirement.
6. The memorandum submitted by the applicant did not include the list of Soldiers recommended for the Driver and Mechanic Badge with Driver-W Bar. There is no evidence in the records and the applicant has submitted no evidence to show he meets the criteria for the Driver and Mechanic Badge with Driver-W Bar. Should the applicant meet the criteria for this award he should submit the evidence through his chain of command.
8. The sworn statements submitted by the applicant describing an incident occurring on 25 July 2007 were noted. The applicant felt his performance during the incident should have been recognized. However, there is no evidence that any action was initiated concerning a recommendation for an award. Anyone having knowledge of the applicant's performance which might have warranted a recommendation for an award could have initiated such a recommendation.
9. The applicant is advised that in accordance with Army Regulation 600-8-22 (Military Awards), each recommendation for an award of a military decoration must be entered administrative into military channels (signed by the initiating official and endorsed by a higher official in the chain of command) within 2 years of the act, achievement, or service to be honored.
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) AR20080011838
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080011838
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2006 | 20060013454C071108
The Puerto Rico Army National Guard Element, Joint Forces Headquarters, Enlisted Promotion Board List, dated 8 December 2005, shows the applicant was selected for promotion to the rank of SFC in MOS 31B4 with a score of 694. Evidence shows that the Puerto Rico Army National Guard EPS Board E7 Roster FY 2003 selected the applicant for promotion to the grade of SFC on 19 February 2003. There is no evidence in the available records which show that the applicant was flagged or otherwise...
ARMY | BCMR | CY2012 | 20120013014
On 21 April 2009, he was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(2), due to disability, temporary. The grade or rank in which he/she is serving on the date when his/her name is placed on the TDRL or, if his/her name was not carried on that list, on the date when he/she is retired. This was not done because the applicant had been promoted to SGT/E-5; it was done because the law allows a member to...
ARMY | BCMR | CY2006 | 20060012408
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The sergeant major informed the applicant that he would not be allowed to attend ANCOC due to his failure to meet the standards of AR 600-9 and would subsequently be demoted to the grade of E-6 based upon his conditional promotion. The applicant did not provide evidence to show, and his records do not indicate that his medical condition required processing through a Medical Evaluation Board (MEBD).
ARMY | BCMR | CY2008 | 20080017413
The applicant requests, in effect, that his June 2003 flagging action be rescinded and that an adjustment to his promotion effective date and date of rank for major be made. The applicant's DA Form 5500-R, dated 2 October 2004, shows he was in compliance with Army height and weight standards. However, it appears the applicant was promoted to major in accordance with Title 10, United States Code, Section 14311, which provided for an officer's promotion 18 months after the approval date of...
ARMY | BCMR | CY2002 | 2002078668C070215
A fifth measurement was taken by the unit weight control NCO on 28 February 2001, which had resulted in a determination that the applicant met the body fat standard. The evidence of record confirms that the applicant was denied attendance at the ANCOC based on his being under a FLAG action, as a result of his being in an overweight status on 4 January 2001, the scheduled date of his ANCOC class. Also, on 28 February 2001, when the unit weight control NCO determined he met the weight...
ARMY | BCMR | CY2008 | 20080001837C080407
By regulation, the applicant's removal from the SFC/E-7 promotion standing list and the revocation of his promotion was required based on his failure to complete the required ANCOES course, which was a condition for his promotion. The evidence of record also confirms that the applicant underwent the required medical evaluation that resulted in a determination that his failure to meet weight standards was not the result of an underlying medical condition prior to his removal from the...
ARMY | BCMR | CY2003 | 2003085590C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. Disqualification for an award of the Army Good Conduct Medal can occur at any time during a qualifying period, requiring a new "beginning date" to be established. Despite his otherwise good record, it appears the applicant was properly denied the opportunity to be awarded an AAM or the Army Good Conduct Medal.
ARMY | BCMR | CY2003 | 2003088494C070403
He stated that after reviewing the applicant's December 2000 body fat content worksheet and his height and weight data dating back to February 1999, evaluation reports, and related medical documentation, he believed that his weight gain of approximately 18 pounds was directly related to his hernia, the repair surgery, and his physical inability to conduct a rigorous fitness regime from December 2000 through October 2001. Therefore, the applicant's record should be corrected to show that he...
ARMY | BCMR | CY2002 | 2002080679C070215
In February 2002, the applicant submitted a request asking that he be reinstated on the promotion list and that he be scheduled to attend the ANCOC. The Board notes the applicant’s contention that the effective date and date of rank of his promotion to SFC/E-7 should be restored to 8 January 2000, because the revocation of this promotion was based on an unverified and flawed body fat measurement that resulted in his unjustly being denied enrollment in the ANCOC, and it finds this claim has...
ARMY | BCMR | CY2013 | 20130020402
The applicant provides copies of the following: * Enlisted Record Brief * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) * two Enlisted Promotion Reports * Memorandum for Record (MFR) * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The evidence of record shows the applicant received an overweight FLAG on 20 November 2012 (a FLAG, dated 18 October 2012, was removed due to being erroneous) for not being in compliance with...