IN THE CASE OF:	  

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080017608 


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 retired rank/grade from sergeant (SGT)/E-5 to staff sergeant (SSG)/E-6.  

2.  The applicant states that he was conditionally promoted to SSG/E-6 on 1 August 2002, but was later reduced on 31 October 2003 for failure to complete the Noncommissioned Officer Education System (NCOES) requirements within the appropriate time frame.  However, prior to his reduction, he had received a physical profile on 14 September 2002 which eventually led to a finding of disability by the Physical Disability Evaluation System (PDES) and subsequent placement on the Permanent Disability Retired List (PDRL).  He adds that his disability was determined to be “In Line of Duty” and that his commander attempted to have his rank reinstated because "AR 601-280, Par. 1-19 (A),(B)"  states that Soldiers who have been conditionally promoted but are unable to complete the requisite NCOES course solely due to a medical condition that results in a finding of unfit by the PDES will not be subject to administrative reduction if otherwise qualified for promotion; however, no action was taken to reinstate his rank.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Commander’s memorandum, dated 21 January 2006, requesting reinstatement of his rank to SSG.

	b.  Headquarters, 95th Division (Institutional Training), Oklahoma City, Oklahoma (OK), Orders 03-303-00022, dated 30 October 2003, and Orders     02-213-0007, dated 1 August 2002. 

	c.  U.S. Army Physical Disability Agency (USAPDA), Washington, DC, Orders D331-03, dated 26 November 2007, and Orders D007-07, dated 7 January 2008.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S. Air Force, the applicant’s records show he enlisted in the Louisiana Army National Guard (LAARNG) on 21 January 1985 and that he was trained in and held military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist).  He was honorably separated from the LAARNG and transferred to the U.S. Army Reserve (USAR) Control Group on 15 January 1989.  He was honorably discharged from the USAR on 12 May 1992.

2.  On 9 January 1998, the applicant enlisted in the USAR for a period of 6 years in the rank/grade of private first class (PFC)/E-3 and was subsequently promoted to specialist (SPC)/E-4 on 9 May 1998.

3.  On 3 January 1999, the applicant was ordered to active duty in a USAR Active Guard Reserve (AGR) status for a period of 3 years and was subsequently assigned to the 145th Medical Battalion, Seagoville, Texas.  He held MOS 63S (Wheeled Vehicle Mechanic) and was promoted to SGT/E-5 on 4 July 1999.  He was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 2 January 2002. 

4.  On 1 August 2002, Headquarters, 95th Division (Institutional Training), Oklahoma City, OK, published Orders 02-213-0007, announcing the applicant’s promotion to SSG/E-6.  The orders stated the following additional instructions:

“This promotion is awarded with the condition the Soldier must be enrolled in, and successfully complete, the NCOES course required for the grade to which promoted.  The Soldier understands and agrees that if he/she fails to meet these 4 conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a “No Show,” the Soldier is subject to reduction under AR [Army Regulation] 140-158, paragraph 7-12(d), to the grade and rank held prior to this promotion.  The Soldier further understands that if reduced, service performed in the higher grade will not be considered in determining retirement grade date of rank, or any other determinations dependent on the higher grade.”

5.  On 14 September 2002, the applicant was issued a temporary physical profile for lateral epicondylitis of the right elbow with bone spur, with an expiration date of 22 December 2002.

6.  On 1 February 2003, by memorandum, the 95th Division (Institutional Training), Oklahoma City, OK, Division Surgeon, notified the applicant (through his chain of command) that a review of the documentation provided by him indicated that he had one or more medical and/or physical defects which might have rendered him unfit for further military service.  In view of these findings, a permanent change in physical profile (DA Form 3349) had been initiated resulting in a numerical factor of “3” or “3” being awarded in one or more PULHES and that referral to an MOS/Medical Retention Board (MMRB) was mandatory for all Soldiers with a “3” or “4” in one or more PULHES.  

7.  On 24 May 2003, by memorandum, the 95th Division Surgeon requested the applicant submit his civilian documentation regarding any medical conditions and/or physical defects for further review.

8.  On 30 October 2003, Headquarters, 95th Division (Institutional Training), Oklahoma City, OK, published Orders 03-303-00022, announcing the applicant’s reduction from SSG/E-6 to SGT/E-5, with an effective date of 31 October 2003 and a date of rank of 7 February 2002, in accordance with paragraph 7-12 (d-g) of AR 140-158.

9.  On 17 April 2004, the applicant was issued a permanent physical profile due to degenerative spine disease and an umbilical hernia.  He received a “4” in the P, U, and L portions of his PULHES.

10.  On 3 March 2005, the applicant acknowledged written receipt of the notification to convene an MMRB and elected to appear before the MMRB.  However, it is unclear if an MMRB convened and if so, the results of this MMRB are not available for review with this case.  

11.  On 28 November 2005, a medical evaluation board (MEB) convened and determined that the applicant’s medical conditions of psoriatic arthritis, chronic active hepatitis C virus, and chronic left knee pain did not meet retention standards of chapter 3 of AR 40-501 (Standards of Medical Fitness) and that he also suffered from chronic low back and neck pain.  The MEB recommended referral to a physical evaluation board (PEB).  The applicant indicated he did not desire to continue on active duty but did not indicate if he agreed/disagreed with the MEB’s findings and recommendations.




12.  On 21 January 2006, by memorandum addressed to the 95th Division, the applicant’s immediate commander requested reinstatement of the applicant’s rank/grade to SSG/E-6.  However, there is no indication if the 95th Division responded to this request.

13.  On 8 November 2007, an informal PEB convened at Fort Sam Houston, Texas, and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to lumbar degenerative disease, chronic left knee and right elbow pain, hepatitis C, cervical degenerative disease, and psoriatic arthropathy.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a combined rating of 30 percent.  The PEB recommended that the applicant be placed on the PDRL.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing in his case.

14.  On 26 November 2007, the USAPDA published Orders D331-03 releasing the applicant from his USAR unit and placing him on the PDRL in the retired rank/grade of SGT/E-5 effective 28 December 2007.

15.  AR 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

16.  AR 600-8-19 (Enlisted Promotion and Reduction) prescribes the enlisted promotions and reductions function of the military personnel system.  Until the regulation was changed on 21 July 2006, it applied only to Active Army and to USAR enlisted Soldiers who were serving on active duty and were counted against the end strength of the Active Army (sergeant to sergeant major promotions) and to USAR enlisted Soldiers serving on initial active duty for training.  






17.  Paragraph 1-19(a) of the current AR 600-8-19 states that Soldiers who are pending referral to or action by a MOS/medical retention board (MMRB) (AR 600–60), medical evaluation board (MEB), or physical evaluation board PEB) (AR 635–40) will not be denied promotion based on medical disqualification if they are they are otherwise qualified for promotion. Furthermore, paragraph 1-19b of this regulation states that Soldiers who have been conditionally promoted but are unable to complete the requisite NCOES course solely because of a medical condition that results in finding of unfit by the PDES will not be subject to administrative reduction if otherwise qualified to retain the promotion.

18.  AR 140-158, in effect at the time, provided policies and procedures governing the promotion of U.S. Army Reserve enlisted Soldiers.  Chapter 8 of this regulation specified the NCOES requirements for each NCO rank.  In pertinent part, it stated that an E-7 must be a graduate of ANCOC, an E-6 must be a graduate of BNCOC, and an E-5 must be a graduate of PLDC.  Paragraph 8-19 stated that a Soldier may be promoted to sergeant through master sergeant on the condition he or she enroll in and successfully complete the course required for that grade.  If the grade required the Soldier be a graduate of BNCOC, the Soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date.

19.  AR 140-158, paragraphs 8-21 and 8-22, provided that a conditionally promoted Soldier will be authorized delayed enrollment in, or completion of a required NCOES course when the Soldier has been approved for such delay in writing by the appropriate authority based on, among other reasons, being ill or injured to a degree that prevents enrollment or course completion.  The Soldier should re-enroll in the course as soon as the reason for delay has been satisfied and no adverse actions will be brought against the Soldier.

20.  AR 140-158, paragraph 7-12d stated, in pertinent part, that a Soldier who accepts a promotion with the condition that he/she must enroll in, and successfully complete, a specified NCOES course, and fails to meet these conditions, will be reduced to the rank held prior to the conditional promotion.  

21.  AR 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist unit commanders/personnel officers in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  There are four numerical designations (1-4) that are used to reflect an individual's different levels of functional capacity in six factors known as the PULHES.  Each letter stands for a specific capacity as follows:  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears,       E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

22.  Profiles may be either temporary or permanent.  A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  Soldiers on active duty and RC Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer.  A profile is considered permanent unless a modifier of "T" (temporary) is added.  If the profile is permanent, the profiling officer must assess if the Soldier meets retention standards in accordance with chapter 3, AR 40-501.  Those Soldiers on active duty who do not meet retention standards must be referred to an MEB as per chapter 3. A permanent profile may only be awarded or changed by the appropriate profiling officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his retired rank/grade should be corrected to show SSG/E-6 instead of SGT/E-5.

2.  The applicant cited paragraph 1-19(a) and 1-19(b) of "AR 601-280" [sic] (he meant AR 600-8-19) as the authority not to administratively reduce him because of his disability which eventually led to his placement on the Permanent Disability Retired List (PDRL).  This regulation did not govern USAR enlisted promotions during the time in question.  The applicant was released from active duty and transferred to the USAR Control Group (Reinforcement) on 2 January 2002.  AR 140-158 applied at that time.

3.  The evidence of records shows that the applicant in this case was promoted to SSG/E-6 on 1 August 2002 while a member of the USAR.  His promotion was in           accordance with AR 140-158, a USAR regulation, and contingent upon completion of the required NCOES.  There is no evidence that the applicant was enrolled in               


or completed BNCOC within the time frame specified, nor that he even requested and/or was authorized delayed enrollment in, or completion of the required NCOES course due to his medical condition.

4.  It appears that the applicant was undergoing treatment at a civilian medical facility
 at the time of his promotion to SSG/E-6.  It was the applicant's responsibility to submit a request or to see that his command submitted a request for BNCOC delay/deferment and track his request for delay/deferment and to ensure that it was approved by the appropriate authority.  Although he may have been preoccupied with his medical conditions, there is no evidence that he submitted the appropriate request for a deferment.

5.  In view of the foregoing evidence, there is insufficient evidence to grant the applicant the requested relief in this case.

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.



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      _______ _   _______   ___
               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)                                         AR20080017608



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ABCMR Record of Proceedings (cont)                                         AR20080017608



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