IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20080016946 


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, reconsideration of his earlier petition requesting an adjustment of his sergeant first class (SFC) date of rank (DOR) and payment of all back pay and allowances due as a result. 

2.  The applicant states, in effect, that although he was in a platoon sergeant position and had previously served in senior noncommissioned officer (NCO) and first sergeant (1SG) positions, an injury prevented him from being selected for promotion to SFC.  He indicates he was seriously injured and underwent an operation on his spine and he states that he should have received a disability rating higher than 10 percent (%)for this condition.

3.  The applicant provides the following documents as new evidence:  self authored statement; Army Board for Correction of Military Records (ABCMR) Record of Proceedings AR20060008821; electronic mail (e-mail) Messages; DD Form 3349 (Physical Profile); Adjutant General’s Department, Austin, Texas, Orders Number 283-1060, dated 10 October 2002; Headquarters, III Corps and Fort Hood Orders Number 239-0332, dated 27 August 2002, and Orders Number 136-4, dated 16 May 2002; DA Form 2-1 (Personnel Qualification Record); NCI Information Systems Letter, dated 6 August 2002; Texas Military Forces Memorandum, dated 5 December 2003 and Orders Number 220-1081, dated     7 August 2004; Operative Report, dated 19 July 2004; self-authored Order of Events; Army Review Boards Agency (ARBA) letter, dated 23 June 2006; DA Form 638 (Recommendation for Joint Award); and Certificate of Retirement.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060008821 on 15 May 2007.

2.  During its original review, the Board determined that the applicant was not eligible for promotion to SFC in August 2003, when he was selected for promotion, because he was undergoing medical evaluation and treatment.  The Board further determined that the applicant was approved for release from active duty (REFRAD) because of a physical disability incurred as a result of injury while entitled to basic pay and for placement on the Temporary Disability Retired List (TDRL) with a 30% disability rating.  On 2 June 2007, the applicant was authorized promotion to SFC with an effective date of 15 May 2006, and he was accordingly placed on the TDRL in that rank.  

3.  The applicant’s military record shows that after having prior active duty and Reserve Component (RC) service, he enlisted in and entered the Texas Army National Guard (TXARNG) on 8 December 1992.  

4.  On 10 October 1999, the applicant was promoted to the rank of staff sergeant (SSG).  

5.  The applicant’s Official Military Personnel File (OMPF) contains a DA Form 2173 (Statement of Medical Examination and Duty Status) that shows the applicant received medical treatment for his left hip and for lower back pain as an out-patient on 3 June 2002.  Item 15 (Details of Accident or History of Disease) of this form shows the applicant indicated he had pain for approximately 3 weeks, which stemmed from wearing his Load Bearing Equipment (LBE) for long periods of time and that it was worst in the area where his canteen pressed against him.  On 5 August 2002, the injury was determined to be in the line of duty.

6.  The applicant’s DA Form 2-1 (Personnel Qualification Record) includes an entry in Section VII (Current and Previous Assignments) which shows he was assigned to a 1SG position on 11 September 2002, and that he was reassigned to a squad leader position the very next day on 12 September 2002.  

7.  On 1 July 2003, the applicant’s unit received notification that he was selected for promotion to SFC by the Enlisted Promotion System (EPS) and he was offered a position in that higher grade.  On 30 July 2003, the applicant accepted the position offered to him; however, he indicated he was currently injured and waiting an extension of his incapacitation pay and a fitness evaluation.

8.  On 23 September 2003, a DA Form 261 (Report of Investigation – Line of Duty and Misconduct Status) was initiated.  It shows that the Chief, National Guard Bureau (NGB) approved an in the line of duty (LOD) determination for the applicant’s bilateral hip and lower back pain.

9.  On 24 November 2003, the Chief, Spine Surgery Service, Headquarters, United States Army Medical Department Activity (USAMEDDAC), issued a memorandum indicating the applicant was placed on a waiting list to correct a condition outside of the retention criteria as outlined in Army Regulation 40-501.  It was also noted that the surgery was elective given that it was not life or limb threatening; however, because the applicant fell outside the retention criteria, a medical evaluation board (MEB) would be initiated if his command did afford him the opportunity to correct his condition.  The applicant’s command agreed to afford the applicant this opportunity.

10.  The applicant’s OMPF includes a noncommissioned officer evaluation report (NCOER), which rated him as a squad leader in military occupational specialty (MOS) 12B3O for the period from November 2002 to October 2003.  This evaluation report shows the applicant was receiving incapacitation pay and had not weighed in or taken the Army’s Physical Fitness Test (APFT) in the past 
12 months.

11.  The Chief, Orthopedic Spine Surgery, USAMEDDAC, issued a Memorandum for Record (MFR) on 29 June 2004 that indicated the applicant was scheduled for surgery on 19 July 2004.

12.  The applicant’s OMPF includes an NCOER that rated him as a platoon sergeant leader in duty MOS 12B4O for the period from October 2003 to September 2004.  This evaluation showed the applicant had not been to drill for two and one half years, that he had received incapacitation pay for over two years, and that he had to be medically evaluated to determine his fitness for duty. 

13.  On 15 November 2005, the Department of Orthopedic and Rehabilitation Services, USAMEDDAC, issued a memorandum indicating the applicant was a patient at Darnall Army Community Hospital.  It also indicated the applicant was originally seen in 2002 and that all appropriate non-operative management was attempted.  It further confirmed the applicant underwent surgical intervention on 19 July 2004, and that during his 12 to 18 month recovery and rehabilitation period, his condition stabilized and that an MEB was initiated.  The MEB proceedings and accompanying document are not on file in the applicant's record. 


14.  On 28 April 2006, an informal Physical Evaluation Board (PEB) convened at Walter Reed Army Medical Center to consider the applicant's case.  The PEB found the applicant to be unfit for further service due to chronic low back pain, status post L4-L5 fusion, without neurologic abnormality, combined thoracolumbar range of motion (ROM) 220 degrees under Veterans Affairs (VA) Schedule Rating for Disabilities (VASRD) code 5241 (10%); chronic pain left shoulder and left knee (slight/constant) under VASRD codes 5099 and 5003 (10%); and flexion contracture right knee, extension limited to 10 degrees under VASRD codes 5003 and 5251 (10%).  The PEB recommended he receive a combined rating of 30% and that he be placed on the TDRL with reexamination during March 2007.

15.  On 3 May 2006, the United States Army Physical Disability Agency (USAPDA) issued Orders Number D123-01, which directed the applicant's release from duty because of a physical disability incurred as a result of injury while entitled to receive basic pay and his placement on the TDRL on 16 May 2006.  

16.  The Texas Military Forces, ARNG, Adjutant General’s Department, issued Orders Number 130-1010 on 10 May 2006, which discharged the applicant from the TXARNG on 16 May 2006, and assigned him to the Retired Reserve on 
17 May 2006 and Orders 153-1027 on 2 June 2006, which promoted the applicant to SFC on 15 May 2006.  The authority for this promotion was Army Regulation 600-8-19, paragraph 21e.  The applicant’s OMPF contains no evidence to show that the TXARNG promoted him to SFC prior to 15 May 2006.

17.  On 1 October 2007, a formal PEB reevaluated the applicant’s medical conditions and again found him physically unfit for continuation on active duty.  The PEB recommended the applicant be permanently retired from by reason of disability and the Secretary of the Army approved this recommendation on          4 October 2007.

18.  On 5 November 2007, the USADPA issued Orders Number D310-06.  These orders directed the applicant’s removal from the TDRL on 5 November 2007 and his placement on the permanent disability retired list (PDRL) on 6 November 2007, with a combined disability rating of 30%.  There is no evidence in the applicant’s OMPF to show he disagreed with this determination.

19.  Title 10, U.S. Code (USC), Section 1372 (Grade on Retirement for Physical Disability: members of Armed Forces), provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability, or whose name is placed on the TDRL, is entitled to the grade equivalent to the highest of the following: (1) The grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired.  (2) The highest temporary grade or rank in which he served satisfactorily, as determined by the service Secretary. (3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  (4). The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

20.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated       1 November 1991, in effect at the time of the applicant's discharge, states that Soldiers in the ranks of private, E-1 to master sergeant, E-8 are nonpromotable to a higher grade when a PEB determines that a Soldier is no longer qualified for continued service.

21.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to promotion to SFC/E-7 and back pay because he served in platoon sergeant, senior sergeant, and first sergeant positions and because his injury prevented his promotion in 2003 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows that the applicant was assigned in platoon sergeant and 1SG positions; however, it fails to show he actually performed the duties associated with these positions.  His DA Form 2-1 only shows he was assigned to a 1SG position for one day and the NCOER which rated him during the period of his assignment in the platoon sergeant position indicates he performed no drills for the past two and a half years, he was waiting an evaluation of his duty status, and waiting an extension of incapacitation pay, which apparently shows he did not perform in either of these positions for medical reasons.  

3.  The evidence of record shows that upon receiving notification of his selection for promotion to SFC, the applicant accepted the higher graded position and indicated that at that time he was currently waiting an extension of his incapacitation pay and a fitness evaluation.  Subsequent to additional medical treatment and further evaluation, the PEB determined that the applicant was unfit for further service and he was discharged accordingly.

4.  The regulation in effect at the time clearly states that those Soldiers deemed medically unfit by a PEB were not eligible for promotion.  The applicant’s records clearly show that he was undergoing medical treatment and evaluation at the time the results of the 2003 promotion list was received and therefore he was not eligible to fill the position vacancy upon which the promotion was based at that time.  As a result, absent any evidence that the applicant ever served in the duty position upon which his vacancy promotion would have been based, or that he was ever promoted by the State of Texas, there is an insufficient evidentiary basis upon which to base an adjustment to his SFC promotion date and date of rank, or to support granting him back pay and allowances for a retroactive promotion. 

5.  Title 10 of the U. S. Code provides that the Soldier will be retired and placed on the retired list in the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  Accordingly, the applicant was appropriately promoted to the rank of SFC in conjunction with his placement on the TDRL on 15 May 2006 with a 30% disability rating.  Further, a formal PEB reevaluated the applicant on 1 October 2007, and again found him physically unfit and ultimately recommended his permanent disability retirement with a 30% disability rating which was approved by the Secretary of the Army on 4 October 2007.

6.  Finally, the PEB considered the applicant's unfitting conditions related to his spine and rated the applicant with 10 percent disability in accordance with the VASRD.  Absent any evidence that the applicant's processing through the Physical Disability Evaluation System was flawed, or that he contested the rating at the time, there is an insufficient evidentiary basis to conclude he should have received an increased disability rating.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060008821 dated 15 May 2007.




      _______ _   _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)                                         AR20080016946



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