BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090004881 


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 retired grade from staff sergeant (SSG)/pay grade E-6 to sergeant first class (SFC)/pay grade E-7.

2.  The applicant states, in effect, that a promotion list was released on 9 May 1971, while he was outprocessing his duty station in Kaiserslautern, Germany, as a result of his approved medical retirement.  He states that he saw his name at the top of the list, indicating that he would be the next Soldier promoted.  The applicant alleges that another Soldier was promoted in his place.  The applicant states that he spoke with the company commander and the commander said he would forward the applicant's orders for promotion.  He continues that due to the fact that he was departing the unit the next day, he believed the promotion orders would follow him to the Transition Center at Fort Dix, NJ.  The applicant adds that he never heard any more about his promotion and assumed that the orders were never prepared in Germany.  The applicant contends that this injustice should be favorably considered because he has spent many years seeking help from Retirement Services, but to no avail.  The applicant summarizes that he spoke with a retired military attorney recently who advised him to pursue this matter again.

3.  The applicant provides copies of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a Letter Order, a medical statement, and four letters as documentary evidence in support of his application.



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's record shows that he was medically retired due to a permanent physical disability.  At the time of his retirement, he possessed military occupational specialty (MOS) 31M (Radio Relay and Carrier Attendant).

3.  The applicant provides an undated Medical Statement rendered by a Staff Cardiologist assigned to the U.S. Army General Hospital located in Landstuhl, Germany.  The Staff Cardiologist stated, in effect, that the applicant had a Medical Evaluation Board (MEB) which recommended that he be considered unfit for service, but retained with a P4 (Permanent level-4) physical profile with a waiver.  However, an informal Physical Evaluation Board (PEB) subsequently decided to retire the applicant due to a permanent disability with a disability rating of 80 percent.  The Staff Cardiologist continued that the applicant's condition had worsened since the time of his MEB and advised the applicant to appeal the decision of the PEB.  The applicant's rank was consistently shown as SSG throughout this document.

4.  The applicant provides U.S. Army Physical Disability Agency (USAPDA), U.S. Army Central Physical Evaluation Board, Walter Reed Army Medical Center, Washington, D.C., letter, dated 28 January 1971, which shows a military attorney who was appointed to represent the applicant's interest before the PEB contacted him and requested pertinent information in order to best present his case.  The attorney informed the applicant that the hearing for his case was scheduled for 24 February 1971 and encouraged him to provide a reply at his earliest convenience.  The applicant's rank was shown as SSG on this document.

5.  Office of The Adjutant General, Washington, D.C., Letter Orders Number
D3-988, Subject:  Enlisted Disability Retirement, dated 24 March 1971, show the applicant was determined to be permanently unfit for duty by reason of physical disability and relieved him from assignment and duty effective 17 May 1971.  These orders also placed the applicant on the Retired List effective 18 May 1971 in the retired grade of SSG with a disability rating of 80 percent.  The applicant's rank was consistently shown as SSG throughout this document.

6.  The applicant provides a copy of a statement he sent to the Assistant Principal of the Kaiserslautern High School, dated 4 May 1971.  The applicant, in effect, informed the Assistant Principal that he had recently been informed that he would be medically retired on 17 May 1971 and as a result, his daughter would be withdrawing from school.  The applicant showed his rank as SSG on this document and authenticated it with his signature.

7.  There are no orders in the applicant's Official Military Personnel File (OMPF) promoting him to SFC.

8.  Item 5a (Grade, Rate or Rank) of the applicant's DD Form 214 shows his rank as SSG.  Item 5b (Pay Grade) shows his pay grade as E-6.  Item 6 (Date of Rank) shows his date of rank as 1 June 1968.  Item 32 (Signature of Person Being Transferred or Discharged) shows the applicant reviewed this document for administrative accuracy and authenticated it with his signature at the time of his separation.

9.  The applicant provides an Office of the Chief of Legislative Liaison, Army Pentagon, Washington, D.C., letter, dated 19 February 2009.  This letter was rendered by the Chief of the Correspondence Branch of the Congressional Inquiry Division in response to an inquiry from a U.S. Senator which had been made on behalf of the applicant.  The Chief of the Correspondence Branch, informed the Senator that the applicant had the right to request a review of his concerns by the ABCMR and provided him an application and information sheet in order to assist the applicant with his request.  The Senator, in turn, forwarded this correspondence to the applicant on 5 March 2009.

10.  Army Regulation 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

11.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, established the standardized policy for promotion of enlisted Soldiers.  This regulation, in pertinent part, provided that in order to be eligible for promotion consideration, a Soldier had to be physically qualified to perform all the duties of the MOS and grade to which promotions is to be made as deter-mined by observation of performance of duty by the local commander.  Individu-als possessing physical limitations which prohibited effective performance of duty in the next higher grade should not be promoted.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  This regulation, in pertinent part, stated that the active duty grade or rank and pay grade at the time of separation will be entered in Items 5a and 5b and the date of rank in item 6 of the DD Form 214.

14.  Army Regulation 15-185 (ABCMR) 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.  This regulation also provides that the ABCMR will decide each case based upon the evidence of record; it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his retired rank and pay grade SFC/E-7 was carefully considered and determined to lack merit.

2.  Evidence shows the applicant underwent the physical disability evaluation process and was determined to be unfit in the rank of SSG.  Contemporaneous policy provided that individuals possessing physical limitations which prohibit effective performance of duty in the next higher grade should not be promoted and could not be considered for promotion unless they were granted a waiver.  The applicant's record is void of any evidence that he was granted a waiver for promotion consideration; therefore, he was not eligible for promotion to SFC.

3.  The applicant's record contains no evidence and he has failed to provide any evidence that shows he was considered, selected, and subsequently promoted to the rank of SFC.  Therefore, he is not entitled to correction of his records to show he was promoted to and retired in the rank of SFC.

4.  Without evidence to the contrary, the entries in items 5a, 5b, and 6 of the applicant's DD Form 214 are presumed to be correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090004881



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ABCMR Record of Proceedings (cont)                                         AR20090004881



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