DOCKET NUMBER:  AR20090002340 


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 correction of his records to show he was promoted to sergeant (SGT)/E-5.

2.  The applicant states that he was eligible for automatic promotion in September 2008; however, because he was in the Army overweight program from January 2008 to August 2008, his promotion was flagged.  He adds that he lost the required weight and the flag was removed on 15 August 2008; however, his promotion orders were not processed before his disability retirement in December 2008. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 December 2008; a copy of DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 15 August 2008; and a copy of a letter of support, dated 4 December 2008, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that on 9 September 2004 he enlisted in the Regular Army (RA) for a period of 3 years and 19 weeks in the rank/grade of private first class (PFC)/E-3 on 9 September 2004.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19K (M-1 Armor Crewman).  He was assigned to the 426th Combat Support Battalion, Fort Campbell, KY, and he was promoted to specialist (SPC)/E-4 on 1 September 2006.
2.  The applicant's records also show he served in Iraq in support of Operation Iraqi Freedom from 24 September 2005 to 4 September 2006.

3.  The applicant's records further show he was awarded the Army Commendation Medal, Army Achievement Medal, Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, Combat Action Badge, and the Driver and Mechanic Badge with Mechanic Bar.

4.  On 25 September 2007, the applicant was reassigned to the Warrior Transition Unit (WTU), Fort Campbell, KY, for continuation of medical treatment and/or hospitalization pertaining to a diagnosis of bilateral knee pain.

5.  On 4 January 2008, the applicant was authorized retention on active duty until 18 July 2008 for completion of medical treatment.  On 16 June 2008, he was authorized a second retention on active duty until 17 January 2009 for completion of medical treatment. 

6.  On 12 February 2008, the applicant's immediate commander initiated a flagging action against the applicant, effective 8 February 2008, by reason of enrollment on the weight control program.

7.  On 15 August 2008, the applicant's immediate commander removed the flag, effective 14 August 2008.

8.  On 5 September 2008, an informal physical evaluation board (PEB) convened at Fort Sam Houston, TX, and found the applicant's conditions of cognitive disorder, degenerative arthritis/lumbar spine, and degenerative arthritis/
osteoarthritis prevented him from performing the duties required of his rank and specialty and determined that he was physically unfit.   The applicant was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD) and granted a combined 60 percent disability rating.  The PEB recommended the applicant be retired for permanent disability.  

9.  On 28 December 2008, the applicant was honorably retired in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability.  The DD Form 214 he was issued shows he completed 4 years, 3 months, and 20 days of total creditable active service.  Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of his DD Form 214 show the entries "SPC [specialist]" and "E-4," respectively.

10.  A staff of the Board contacted the applicant's unit on 4 June 2009 to obtain a copy of the AAA-294 (Enlisted Promotion Report) with the applicant's name posted; however, the unit was unable to find such a report.

11.  The staff of the Board then contacted the U.S. Army Human Resources Command (HRC) - Alexandria, VA, on 11 June 2009 and requested verification that the applicant's name was posted to the AAA-294 Enlisted Promotion Report-Automatic List Integration; however, HRC has no record of the applicant being integrated on the promotion list.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-10 of this regulation lists conditions in which Soldiers are considered in a non-promotable status.  It states, in pertinent part, that Soldiers (SPC through master sergeant (MSG)) are non-promotable to a higher grade when the Soldier has incurred suspension of favorable personnel action (FLAG) under the provisions of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions).

13.  Paragraph 1-11 of Army Regulation 600-8-19 states, in pertinent part, that when a delay of promotion has occurred because of suspension of favorable personnel actions, the following rules apply once the final DA Form 268 (Report to Suspend Favorable Personnel Actions) has been prepared.  The Soldier’s promotion status will be determined as follows:

	a.  if the flag is lifted with the disposition, "case is closed favorably," and he or she would have been promoted while the suspension of favorable personnel actions was in effect, provided otherwise qualified, he or she will be promoted. The effective date and date of rank (DOR) will be the date the Soldier would otherwise have been promoted;

	b.  if the Soldier’s final report is closed with "disciplinary action taken," and he or she would have been promoted while the suspension of favorable personnel actions was in effect, provided otherwise qualified, he or she will be promoted unless action has been initiated to remove the Soldier from the recommended list.  The effective date and DOR will be the date following the removal of the suspension of personnel actions; and 

	c.  if the Soldier’s final report is closed with “other final action” (applies to the Army Weight Control Program, Army Physical Fitness Test (APFT), and Army Substance Abuse Program (ASAP)), and he or she would have been promoted while suspension of favorable personnel actions was in effect, provided otherwise eligible, he or she will be promoted.  The effective date and DOR will be the effective date of the removal of the suspension of favorable personnel action. 

14.  Military Personnel (MILPER) Message 06-216, dated 7 August 2006, Department of the Army Promotion List Integration to Sergeant (SGT) Promotions, effective 1 October 2006, provides procedural guidance to the automatic promotion list integration for Soldiers who meet the required criteria.  It states, in pertinent part, that eligible Soldiers in the grade of E-4 with 46 months time in service (TIS) and 10 months time in grade (TIG), and who are not otherwise denied by the commander, will be automatically integrated into the recommended list provided they are otherwise eligible for recommended list consideration despite lacking the actual board appearance.  These Soldiers will be given 350 points.  HRC will post a list of Soldiers who according to the HRC system have met or exceeded the automatic recommended list integration effective 1 August 2006.  A Soldier who is denied automatic recommended list integration will be counseled.   Once monthly cut-off scores have been determined, those meeting or exceeding cut-off scores by board appearance, and otherwise fully eligible, will be promoted first.  If, after review, there is still a requirement for promotions, HRC will select that requirement from those Soldiers listed with 350 points and otherwise fully eligible.

15.  Paragraph 3-17 of Army Regulation 600-8-19 states, in pertinent part, that each month, Active Army Soldiers in all MOSs who have 46 months TIS (to become eligible for promotion at 48 months), 10 months TIG (to become eligible for promotion at 12 months), are otherwise not ineligible in accordance with this regulation, and not otherwise denied by the CDR, will be automatically integrated onto the SGT promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance. Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list.  If the commander determines that a promotion is to be denied, the unit CDR will take action to deny list integration prior to the 15th of the month the Soldier’s name is identified for list integration. Failure to deny integration by the 15th of the month the Soldier attains eligibility will result in the Soldier being integrated onto the promotion standing list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been promoted to SGT/E-5 prior to his retirement.

2.  There is no evidence in the applicant's records and the applicant did not provide any evidence that he appeared before the SGT/E-5 promotion board and met the cut-off score for his MOS to be promoted to SGT/E-5.  Furthermore, the applicant entered active duty on 9 September 2004.  The earliest he would have qualified for automatic list integration to SGT without a board appearance was 9 July 2008 (46 months).  However, he was flagged at the time and could not be in a promotable status. 

3.  The applicant's flag was removed on 15 August 2008.  The earliest he could have been auto-integrated onto the automatic list integration was 1 October 2008 (as the integration must occur before the 15th of each month); however, his records indicate that he had already entered the Physical Disability Evaluation System (PDES) and his PEB had convened on 5 September 2008, resulting in the recommendation for his permanent disability retirement.  He was therefore within 90 days of separation/retirement and could not have been auto-integrated. 

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)                                         AR20090002340



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002340



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1