IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090000992 


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 reconsideration of his previous request to be promoted to lieutenant colonel (LTC) based on his selection by the 2005 LTC Reserve Component Selection Board (RCSB) with a promotion effective date of March 2006.

2.  The applicant states that in the Spring 2004 he broke his right leg at the ankle and that due to his lack of mobility he gained approximately 30 pounds during his recovery.  He states that he was flagged by his unit for height, weight, and failing his Army Physical Fitness Test (APFT) when he was not able to complete the alternate aerobic event (2.5-mile walk) even though he had requested to be tested on a stationary bicycle.  He states that although he was making progress with his body fat percentage in late 2005, he realized that he would not be able to have the flags removed until he was allowed to have a higher percentage of body fat for his age, which was on his birthday in March.  He states that he was not able to conduct a record APFT in April 2006 and that the first available date was the first weekend in May.  He states that although he passed his APFT, he found out after the drill weekend that he had been medically disqualified for continued service.  He states that he originally thought he would be promoted into the Individual Ready Reserve because of the delays of being transferred.  He cites Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 4-9 (Officers Selected for Promotion), as the basis for his request for reconsideration.

3.  The applicant provides in support of his application a letter addressed to the Board dated 19 November 2008; a memorandum from his commander dated 7 August 2003, addressed to the Commander, 81st Regional Readiness Command; a copy of what appears to be an x-ray of his leg; a memorandum from his commander, dated 11 April 2006, addressed to the Commander, 81st Regional Readiness Center; a copy of his Notification of Medical Unfitness for Retention, dated 6 May 2005; a memorandum addressed to him from the President, United States Army Physical Evaluation Board (PEB), dated 12 May 2006, informing him that his rebuttal to the PEB findings had been reviewed; a copy of a Request for Reserve Component Assignment or Attachment; and a copy of a Promotion Qualification Statement.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070003566 on 17 January 2008.

2.  With prior enlisted service, the applicant accepted an appointment as a commissioned officer in the U.S. Army Reserve effective 23 May 1986.

3.  He was promoted to the rank of first lieutenant on 15 May 1989; he was promoted to the rank of captain on 30 June 1993; and he was promoted to the rank of major on 13 January 2000.  He was assigned to a troop program unit (TPU) on an unknown date.

4.  On 3 May 2005, the applicant's commander was notified by the Command Surgeon that a review of the medical records submitted on the applicant indicated that he did not meet the retention requirements in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30d, progressive ataxia.

5.  The available records show that the applicant was considered and recommended for promotion to LTC by the 2005 RCSB.  The President approved the board results on 30 December 2005 and the applicant was advised that to be promoted, he must remain in a Reserve Active Status and meet the promotion eligibility criteria set forth in Army Regulation 135-155.  He was further advised that failure to comply with the instruction may result in his removal from the selection list.

6.  An informal PEB convened on 14 April 2006 and the board found the applicant physically unfit due to his cerebellar ataxia which was progressively deteriorating making it difficult for him to even rise from a chair.  The board found that the applicant's case should be referred for disposition under Reserve Component regulations.

7.  A formal PEB convened on 1 May 2006 and the board found the applicant unfit due to his cerebellar ataxia which was progressively deteriorating making it difficult for him to even rise from a chair.  The board noted that the applicant's own functional capacity certificate stated that he could not lift at least 35 pounds and walk 100 feet, and he was unsafe on uneven ground.  The board determined that he could not perform the preponderance of his responsibilities within the limits of his profile without creating an unreasonable risk to his health and that he could not execute those duties without imposing unreasonable requirements on the Army to maintain his health or protect him.

8.  The PEB noted that the applicant's case was adjudicated as a nonduty-related case under the provisions of Department of Defense (DOD) Directive 1332.18, paragraph 3.5 (page 3) and DOD Instruction 1332.38, Part II, paragraph E3.P2.3 (page 27).

9.  On 10 May 2006, the applicant submitted a rebuttal to the decision made by the formal PEB.  On 12 May 2006, he was notified that his rebuttal had been reviewed and that his rebuttal contained no new objective medical or performance evidence which would warrant a change to the original findings.  He was told that in reaching the decision, even though he had made progress, his "fall risk assessment" still placed him at a moderate risk for a fall and that most likely did not include an assessment on uneven terrain.  The applicant was told that his case was being forwarded to the United States Army Physical Disability Agency for final processing as established by Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  The available records indicate that the applicant has been transferred to the Retired Reserve.

11.  The memorandum, dated 7 August 2003, that the applicant submits in support of his appeal is from his commander and is addressed to the Commander, 81st Regional Readiness Command.  His commander stated that he reviewed the applicant's medical records and medical evaluations and that he observed the applicant's performance of duty for 2 years.  He stated that the applicant could perform all of his assigned duties as Vessel Chief and that he had noticed no decrease in his ability, coordination, or desire.  The applicant's commander stated that he could not predict his future condition; however, he felt comfortable deploying with the applicant to any theater worldwide.

12.  The Request for Reserve Component Assignment or Attachment that the applicant submits in support of his appeal shows that on 10 January 2006 he requested a voluntary transfer from one troop program unit to another troop program unit.

13.  The Promotion Qualification Statement that he submits shows that having been notified of his selection for promotion to the next higher rank, he accepted promotion to the rank of LTC in the U.S. Army Reserve Command Augmentation Unit, Fort McPherson, Georgia, with a position assignment date of 6 April 2006.

14.  The applicant also submits a memorandum from the commander of the 1188th Transportation Terminal Battalion addressed to the Commander, 81st Regional Readiness Command, dated 11 April 2006, attesting to the applicant's ability to perform his assigned duties even with his limited physical abilities.

15.  During the initial processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, Human Resources Command, St. Louis, who stated that the applicant was selected for promotion to LTC by the 2005 RCSB and the board was approved on 30 December 2005.  At that time the applicant was under suspension of favorable action (flag) and was not in a valid higher-graded position.  He was assigned to the higher-graded position on 6 April 2006; however, he was still under a flag.  The flag was removed on 6 May 2006 and the applicant was assigned to a legitimate higher-graded position.  The advisory opinion continues that prior to the assignment, the applicant appeared before a PEB on 1 May 2006 and was deemed permanently disqualified for duty.  In accordance with Army Regulation 135-155, an officer selected for promotion must meet all promotion requirements.  Based on the fact that the applicant was not medically qualified, was removed from the Reserve Active Status List, and was previously flagged, he was not eligible for promotion to LTC.  In view of the facts, it was recommended the applicant's request be denied.

16.  The advisory opinion was forwarded to the applicant for acknowledgement and rebuttal on 9 June 2006.  The applicant did not respond.

17.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation specifies that when an officer has been recommended for promotion to the next higher grade, the officer’s promotion is automatically delayed when the officer is under suspension of favorable personnel actions.  The regulation also specifies that the date of rank and effective date of promotion after an involuntary delay due to any adverse administrative action will be the day after the date a filing of determination is made.

18.  Paragraphs  4-11a(3) through 4-11a(5) of Army Regulation 135-155 specify that the officer must be medically qualified, have undergone a favorable security screening, and must meet standards of the Army Body Composition Program before being promoted.  The military personnel records jacket will be screened to ensure that derogatory or unfavorable suitability information is not contained therein for promotion purposes.  If the results of this screening are favorable, final promotion action may proceed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to the rank of LTC with an effective date of March 2006 based on his selection by the 2005 LTC RCSB.

2.  His contentions have been noted.  However, as he was previously informed, he was not in a promotable status at the time that he was selected for promotion. 
He was under a flag and he was not in a valid higher-graded position.  Although the flag was removed on 6 May 2006, he had appeared before a formal PEB on 1 May 2006 and was deemed permanently disqualified for duty.

3.  It is acknowledged that the applicant provided a memorandum, dated             7 August 2003, from his commander, who asserted that the applicant could perform his duties.  However, that memorandum was dated almost 3 years earlier than the PEB.

4.  The question in this case is whether the applicant met all promotion requirements at the time that he was selected for promotion to LTC.  The documentation that he has submitted in support of his request for reconsideration has been reviewed.  However, in accordance with Army Regulation 135-155, an officer selected for promotion must meet all promotion requirements.  Even barring the fact he was flagged, based on the fact that the applicant was not medically qualified, he was not eligible for promotion to LTC.

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 this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.


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 AR20070003566, dated 17 January 2008.



      __________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)                                         AR20090000992



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ABCMR Record of Proceedings (cont)                                         AR20090000992



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