IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20090003139 


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 promotion to the rank of master sergeant/pay grade 
E-8 at the time of his separation for physical disability with severance pay.  He also requests that a new medical evaluation board (MEBD) be convened and all aspects of his medical condition be re-evaluated.

2.  The applicant states he was on the promotion list for promotion to master sergeant at the time of his MEBD.  He states he submitted a DA Form 4187 (Personnel Action) to request an exception to policy to be separated at the rank of master sergeant.  He states the brigade commander recommended disapproval based on his verbal conversation with the brigade sergeant major.  He states the DA Form 4187 was not forwarded to higher authority but returned with only the action taken by the brigade commander.  He states the Army was approving these exceptions to policy because of the drawdown going on at the time.  He states he believes the brigade sergeant major also influenced other decisions in this matter.

3.  The applicant states his medical conditions were not completely addressed by the MEBD that was conducted on 14 August 1992.  

4.  The applicant provides a copy of his DA Form 4197, dated 8 September 1992, in support of his application.




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel forwarded the applicant's application and supporting evidence with no further comment.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant had previously completed 5 months and 22 days of active service in the U.S. Air Force that was characterized as honorable.  He also served 9 months in the U.S. Army Reserve.  He enlisted in the Regular Army on 28 August 1975 and continued to serve until his discharge.

3.  The proceedings from the applicant's MEBD and the findings and recommendation from his physical evaluation board (PEB) were not available for review.

4.  The promotion list showing the applicant's standing on the promotion list to master sergeant is not available.

5.  The DA Form 4187, dated 8 September 1992, submitted by the applicant, requests an exception to policy so the applicant could be promoted to master sergeant prior to his discharge for disability with severance pay.  The form was submitted by the applicant's company commander, recommending approval of the applicant's request.   On 23 October 1992, the brigade commander recommended disapproval and forwarded the request to Commander, 574th Composite Team.  Actions taken by Commander, 574th Composite Team or higher authority are not available for review.



6.  On 30 October 1992, the applicant was discharged in the grade of sergeant first class/pay grade E-7 by reason of disability with severance pay.  He had completed 17 years, 2 months, and 3 days of active service that was characterized as honorable.

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, states that commanders are responsible for notifying Headquarters, Department of the Army (HQDA) when Soldiers whose names appear on a promotion list to sergeant first class through sergeant major become nonpromotable.  The Personnel Service Company (PSC) was to provide HQDA with the Soldier's name and a brief summary of circumstances that caused the Soldier to become nonpromotable.  Among the list of reasons a Soldier becomes nonpromotable is when a PEB determines that a Soldier is no longer qualified for continued service.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

9.  Title 10, U. S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The medical treatment facility commander with the primary care responsibility evaluates those referred to him and, only if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the 

member to an MEBD.  Therefore, all of an individual's medical conditions are not referred to an MEBD, only those that may be medically disqualifying or cause the individual to fail to meet retention standards.

2.  The applicant's MEBD and Narrative Summary were not available for review.  Therefore, it is unknown what medical conditions the applicant was referred to the MEBD for.  The applicant has not indicated what medical conditions he feels should have been addressed at his MEBD.  

3.  In order for the applicant to be discharged with severance pay, he would have had to have been found not medically qualified to perform duty or failed to meet retention criteria for one or more medical conditions by an MEBD and referred to a PEB.  

4.  The PEB would have had to have found the applicant unfit for duty for one or more of the medical condition(s) referred by the MEBD, determined the applicant's combined disability rating was less than 30 percent, and recommended he be separated with severance pay.  

5.  The applicant's MEBD proceedings and his PEB findings and recommendation were not available for review.  Therefore, the medical conditions referred to the PEB by the MEBD are unknown.  

6.  In view of the above, the medical condition(s) for which the applicant was discharged is unknown.  Any medical diagnoses or opinions provided 
over 15 years after the applicant was discharged would not establish an error or injustice in the proceedings of the MEBD or the findings of the PEB.

7.  The applicant contends his DA Form 4187 was not forwarded to higher authority.  However, the brigade commander's endorsement, dated 23 October 1992, shows the request was forwarded, recommending disapproval, to Commander, 574th Composite Team.  Additional endorsements and/or a response from HQDA were not available for review.  

8.  Army Regulation 600-8-19 is specific in that a Soldier found to be no longer qualified for continued active service by a PEB was nonpromotable.  There were no provisions in the regulation for the submission of waivers of this requirement.

9.  The applicant contends the Army was approving requests for exceptions to policy because of the drawdown going on at the time.  However, there is no evidence and the applicant has provided no evidence that these requests were being approved or the criteria that had to be met for approval.  

10.  In the absence of evidence to the contrary, it is presumed that what the Army did in this case is correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  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.

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)                                         AR20090003139



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ABCMR Record of Proceedings (cont)                                         AR20090003139



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