IN THE CASE OF:	 

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090008999 


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, adjustment to his date of rank for major from 1 October 2008 to 1 June 2007 or 1 October 2007 with entitlement to back pay and allowances.

2.  The applicant states, in effect, that he should have been promoted to major by June 2007 along with his peers.  He also states that the Army failed to detect any injury readily discoverable by a physical examination, failed to process his permanent physical profile before he left active duty, and delayed removing him from the Trainees, Transients, Holdees, and Students (TTHS) account until he finished recovering from his surgery even though his injury had been repaired and would no longer pose a problem.  He first injured his shoulder in the fall of 2000 while playing for the Office of the Staff Judge Advocate softball team and had intermittent pain that did not greatly impact his ability to participate in physical activities at that time.  The pain worsened and became a significant enough problem for him to seek medical care in early January 2001; however, he was not able to obtain a diagnosis for the problem until the summer of 2003.  At that time, he was diagnosed with torn cartilage in his shoulder and underwent a surgical procedure to correct it.  When the problem returned 6 months after the surgery, he underwent a second exploratory surgery 18 months after the first one, which again discovered damaged cartilage in his shoulder.  The problem returned again 6 months after the second surgery and he received a permanent physical profile in June 2006.  His promotion packet was pending before the major's promotion board that week and was pulled after he submitted his resignation.

3.  The applicant further states that in October 2006, he submitted paperwork to leave active duty and he transitioned into the Army Reserve on 2 March 2007.  He was selected for promotion to major by the April 2007 Reserve Components Judge Advocate General (JAG) Selection Board.  By June 2007 the other officers selected by the April 2007 board had been promoted, but his unit was unable to place him in a major's slot in order to promote him.  Around that time he also discovered that he was unable to be promoted because he was in a TTHS status.  He contacted the Reserve command surgeon's office to determine what he needed to do about his situation.  He was advised that he should have gone before a medical board after he received his permanent physical profile.  The Reserve command had consistent problems with active duty Soldiers transitioning into the Reserve who never received a medical board for their permanent profiles while on active duty.  The Reserve command had just completed the last set of medical boards before he discovered he needed to go before one.  He was scheduled for a medical board during the next season in January 2008.  He also states, in effect, his civilian doctor confirmed he had a torn ligament in his shoulder and was operated on in October 2007.  The surgery was successful and his doctor also discovered cartilage damage in his shoulder that the Army surgeon overlooked and failed to repair.  Even though his injury had been finally diagnosed and treated, the command surgeon's office would not transfer him from the TTHS account until he had no physical profile, to include a temporary one, that would render him undeployable.  He states that his recovery from surgery was sufficiently complete by 1 August 2008 so that his temporary profile would no longer prevent his deploying.

4.  The applicant also states, in effect, in October 2008 his unit transferred from the 99th Regional Readiness Command (RRC) to the 90th RRC.  Once transferred, the 90th RRC surgeon's office processed his request to be removed from the TTHS account in a timely manner, moved him into a major's position, and promoted him with a date of rank of 1 October 2008, effectively placing him 18 months behind his peers.  He lost 18 months of time in grade and pay differential because the Army failed to diagnose and treat his shoulder injury from January 2001 through his last visit to his active duty surgeon in January 2007, whose failure to diagnosis and treat him resulted in him receiving a permanent physical profile.  The Army failed to process his permanent physical profile properly between July 2006 and March 2007 and the Army Reserve failed to notify him of his placement in a TTHS status and its consequences.  Had the Regular Army and Army Reserve not failed to notify him, his losses would have been significantly limited.

5.  In support of his application, the applicant provides copies of his military and civilian medical records, to include Standard Forms 600 (Chronological Record of 
Medical Care) from 2001 to 2007, radiologic examination reports, DA Form 3349 (Physical Profile), and his subsequent visits and findings forms from Georgetown University Hospital Department of Orthopaedic Surgery from 2007 to 2008.  These documents pertain to his shoulder injury and subsequent military and civilian medical care.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the U.S. Army Reserve (USAR) JAG Corps as a first lieutenant effective 4 January 2000 with prior enlisted service.  He was ordered to active duty and entered active duty on 6 January 2000.

2.  The applicant was promoted to captain effective 1 September 2000.  Based on completion of 7 years of maximum time in grade, his promotion eligibility date for major was 31 August 2007.

3.  The applicant submitted copies of his military medical records to show that he injured his shoulder and sought treatment on 8 February 2001.  The documentation also shows he underwent multiple surgeries and received treatment from 2001 through 2007.

4.  The applicant included a copy of his DA Form 3349, dated 23 June 2006, with his submission.  The DA Form 3349 shows he was issued a permanent physical profile of "13111" for chronic right shoulder pain as a result of an injury.  He was given functional limitations of no running or forced walking.  Item 4c of the DA Form 3349 asks, "If a permanent profile with a 3 or 4 PULHES, does the Soldier meet retention standards in accordance with chapter 3, Army Regulation 40-501 [Standards of Medical Fitness]?"  There is no entry checked for either yes or no to specify he needs an MOS/medical retention board, medical evaluation board, or physical evaluation board.

5.  The applicant’s records contain no evidence or medical records to show when he was placed on and released from the TTHS account.  The Command Surgeon’s Office, Human Resources Command, St. Louis, Missouri, was also unable to verify the dates of the applicant’s placement and release from the TTHS account.  

6.  The applicant was honorably released from active duty effective 1 March 2007 and was transferred to a USAR unit.  There is no evidence he was retained on active duty to undergo medical retention processing or completion of medical care and treatment for his shoulder injury.

7.  The applicant was considered and selected for promotion to major by the 2007 Reserve Components JAG Selection Board that was approved on 21 May 2007.

8.  The applicant also submitted copies of his Georgetown University Hospital medical records which show he underwent surgery on his shoulder on 29 October 2007 and was still receiving treatment as of 1 August 2008.  

9.  The applicant was issued U.S. Army Human Resources Command (HRC), St. Louis Orders B-10-806388, dated 7 October 2008, announcing his promotion to major with an effective date and date of rank of 1 October 2008.

10.  In an advisory opinion, dated 10 August 2009, the Chief, Special Actions Branch, DA Promotions, HRC, St. Louis, Missouri, stated that the applicant was assigned to a troop program unit (TPU) and was recommended for promotion to major by the 2007 Reserve Components JAG Selection Board with a promotion eligibility date of 31 August 2007.  The board was approved on 21 May 2007.  The applicant was transferred from the TPU and assigned to a TTHS unit on 16 March 2007 due to pending medical action.  Soldiers assigned to a TTHS unit are not assigned to a position and are non-deployable; therefore, they are not promotable.  Upon release from the TTHS unit, and if assigned to a unit in a valid higher-graded position, the Solider will be promoted.  The applicant was released from the TTHS unit on 29 September 2008 and assigned back to his TPU in a higher-graded position on 1 October 2008.  He was promoted on orders, dated 7 October 2008, with a date of rank of 1 October 2008.  Since he was not assigned to a valid higher-graded position until 1 October 2008, he is not eligible for an earlier date of rank.

11.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 25 September 2009.  In his rebuttal, dated 18 October 2009, the applicant stated that the advisory opinion did not address the gross negligence in the areas of medical care and professional administration that led to him being placed and held in the TTHS unit.  Secondly, the opinion failed to address the fact that the Army failed to comply with applicable regulations by scheduling him for a medical board after he received his permanent profile.  He would never have been in the TTHS unit had there been a medical provider in the Army capable of diagnosing a ligament tear in the shoulder.  Ultimately, he lost 18 months of seniority and pay because he was unable to find a medical provider in the Army with a minimally competent knowledge of the shoulder despite a 6-year search at three military medical centers.  He submits that he 


should receive seniority and back pay from June 2007, the time when his peers' promotions took effect.  In the alternative, his date of rank should be backdated to October 2007 when he should have been permitted to transfer from the TTHS unit back to his TPU after he no longer had the physical condition that gave rise to his permanent profile.

12.  Army Regulation 135-155 (Reserve Promotions) prescribes the policies and procedures for promotion of Reserve officers.  It specifies that completion of 7 years' maximum time in grade is required for promotion to major.  Officers assigned to a TPU must be serving in a position requiring the higher grade.  TPU officers selected by a promotion board will have a promotion date and date of rank no earlier than the approval date of the board, provided that they are assigned to a position in the next higher grade.  When the board approval date is prior to assignment to the higher graded position, the effective date and date of rank will be the date of assignment to a higher-graded position.

13.  Army Regulation 40-501, chapter 3, provides for the separation of an individual found to be unfit by reason of physical disability.  He must be unable to perform the duties of his office, grade, rank, or rating.  Members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he is entitled to adjustment to his date of rank for major from 1 October 2008 to 1 June 2007 or 1 October 2007 with entitlement to back pay or allowances have been noted; however, the evidence of record shows the applicant was selected for promotion to major by the 2007 Reserve Components JAG Selection Board that was approved on 21 May 2007.  He was selected with a promotion eligibility date of 31 August 2007.  At neither time was he assigned to a higher graded position.  He was assigned to a major's position effective 1 October 2008 and appropriately promoted to major on that date.  The regulation governing promotion of Reserve TPU officers requires assignment to the higher-graded position which the applicant was finally able to obtain in October 2008.

2.  The applicant’s contentions pertaining to his placement and removal from the TTHS account have also been noted.  Documents submitted by the applicant show he was injured while serving on active duty and given a permanent physical profile for chronic shoulder pain.  The advisory opinion shows he was on the 


TTHS from 21 May 2007 through 29 September 2008.  The applicant submitted evidence that he underwent surgery on his shoulder on 29 October 2007 and was still receiving treatment as of 1 August 2008.  He was therefore not eligible for removal from the TTHS until he was medically cleared.  At that time, he was also ineligible for deployment and assignment to a TPU position.  It appears the applicant's placement and removal from the TTHS account was in compliance with applicable policies, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in this process is presumed.  

3.  The documentation submitted by the applicant does not show he was erroneously or unjustly prevented from assignment or assigned to a valid major's position prior to 1 October 2008 based on his injury.  The applicant was promoted to major in accordance with applicable regulations.  The evidence does not show and the applicant has not satisfactorily shown that he was unjustly denied an earlier date of rank for major.  Therefore, it is concluded that the applicant was promoted to major on the earliest date he was eligible and in a timely manner and he has not shown otherwise.

4.  The applicant further has submitted no evidence to prove the Army was negligent in providing him medical care.  Just because the operations did not work out does not mean the Army physicians did not properly conduct the procedures.  Some medical conditions require further procedures to result in an appropriate recovery.   

5.  The applicant is not entitled to adjustment to his date of rank for major from 1 October 2008 to 1 June 2007 or 1 October 2007 with entitlement to back pay or allowances.  He has not shown error, injustice, or inequity for the relief he now requests.  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 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)                                         AR20090008999



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ABCMR Record of Proceedings (cont)                                         AR20090008999



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