IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012031 


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 consideration of his records by a special selection board (SSB) on the basis of having been previously not considered because of an administrative error.  He also requests this SSB review his promotion file as it was prepared by the Office of the Chief, Army Reserve (OCAR), General Officer Management Office (GOMO) for presentation to the 2005 General Officer Assignment Advisory Board (GOAAB), the most recent board that did not consider him due to his pending physical evaluation board (PEB) appeal.

2.  The applicant states that he was notified by the 12 September 2003 non-duty related PEB that he was medically unfit to perform his duties as a U.S. Army Reserve (USAR) Judge Advocate General (JAG) colonel (COL) in the Office of the Army General Counsel (GC) because of a heart condition that precluded him from engaging in strenuous physical training.  He immediately appealed the board's determination.  His appeal was supported by the three most senior lawyers (supervisor, rater, and senior rater) in the Army at the time.  In documents made a part of his appeal, the three senior leaders commented on his future potential as a general officer and that his performance was never affected by his heart condition.  Meanwhile, his promotion file was being prepared for consideration by the 2004 GOAAB.  He adds that, as required by the applicable regulation, he requested that the CAR make a final determination regarding his requested medical waiver and the whether his experience and qualifications were needed in the Army and that the Deputy Chief of Staff (DCS) G-1 make a final determination of the issues of his waiver and retention in an active status if the CAR and/or doctors could not agree on these issues.

3.  However, there is no indication that his PEB appeal was ever processed by the OCAR or DCS G-1 as required by the regulation.  The failure to process his appeal and give it to appropriate Army officials for a determination effectively blocked his promotion consideration by the 2004 and the 2005 GOAAB as OCAR GOMO had to withdraw his file as medically un-cleared at the last moment before each board convened.  Had his PEB appeal been properly processed, it is reasonable to believe that his continued service would have been desired by OCAR and/or DCS G-1 given the strong support he received from the three officials.  An approval would have cleared him to be considered by the 2004 and 2005 GOAAB.

4.  The applicant provides a copy of the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, letter, dated 31 March 2009; copies of 
Orders D-11-536878R and Orders C-04-906721, issued by USAHRC-St. Louis on 25 March 2009 and 1 April 2009; a copy of a self-authored letter, dated 27 April 2004, addressed to the President of the 2005 GOAAB; a copy of his resume and addendum to his resume; a copy of his PEB appeal, dated 26 September 2003; a copy of his summary of experience and qualifications; a copy of his Officer Record Brief; a copy of an undated statement from his supervisor; copies of his DA Forms 67-9 (Officer Evaluation Report (OER)) for the periods 2 December 2002 through 13 December 2002 and 11 September 2000 through 22 September 2000; a copy of the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) and notification memorandum, dated 12 September 2003; a copy of a notification memorandum, dated 29 July 2003, from the Office of the Judge Advocate General (OTJAG) to the Commander, USAHRC-St. Louis; and a copy of his DA Form 1059-2 (Senior Service College Academic Evaluation Report (AER)), dated 19 July 2002, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 22 July 1954.  He was appointed as a first lieutenant in the JAG Corps of the USAR and executed an oath of office on 16 September 1981.  He subsequently entered active duty on 2 October 1981, served in various staff positions, and attained the rank of captain (CPT).  He was honorably discharged on 31 July 1987 by reason of unqualified resignation.

2.  The applicant's records further show he was appointed as a CPT in the USAR and executed an oath of office on 1 August 1987.  He served in various staff positions and attained the ranks of lieutenant colonel on 1 October 1997 and COL on 30 September 2002.  He was assigned as an Individual Mobilization Augmentee to the Office of General Counsel (GC), Washington, DC, as an Assistant to the GC for Operations and Personnel.

3.  The applicant's narrative summary and medical evaluation board are not available for review with this case.  However, the available records show that at one stage he was diagnosed with a partially blocked heart valve that in time would require heart valve replacement surgery.  It appears that this condition precluded him from engaging in strenuous physical training.

4.  On 29 July 2003, by memorandum to USAHRC-St. Louis, TJAG remarked that as an assistant to the GC, the applicant performed his duties in an outstanding manner.  He opined that his medical condition would not have precluded him from performing his duties as a judge advocate IMA.  He also opined that the medical discharge would result in a disservice to the Army and the applicant.

5.  On 12 September 2003, a Reserve Component (RC) non-duty related PEB convened in Washington, DC, to determine the applicant's fitness.  The PEB determined that an echocardiogram showed severe aortic valve calcification and severe valvular aortic stenosis.  There was trace aortic regurgitation; the left atrium was mildly dilated; the mitral valve showed moderate mitral annular calcification; the left ventricle showed mild concentric hypertrophy.  Medical authorities concurred that an aortic valve replacement would likely be required at some point in the not too distant future.  The PEB further added:

	a.  The applicant's permanent physical profile, dated 20 August 2003, limited him to walking at his own pace and distance as the only aerobic conditioning exercise, yet permitted the completion of a walk as an alternate Army Physical Fitness Test (APFT) aerobic event.  Other than the applicant's cardiac condition, there did not appear to be any medical reason which precluded the completion of the push-up and the sit-up events of the APFT.  Based on the severity of the heart condition, the PEB did not believe his physical profile provided adequate protections for the applicant.  The physical exertion required to obtain a passing score on a timed event would pose an unacceptable risk to the applicant and could lead to surgery under emergency conditions.

	b.  Based on a review of the medical evidence of record, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and primary specialty.

	c.  If the applicant had completed 20 years of service toward non-regular retirement, he could request a transfer to the Retired Reserve.  Additionally, if he had more than 15 years but less than 20 years of creditable service toward non-regular retirement, he could request early qualification for Reserve retired pay at age 60.

6.  On 12 September 2003, the applicant was notified by memorandum that the PEB had reviewed his fitness for continued military service and he was found unfit and his case was referred for disposition under USAR regulations.  He was also notified that he must indicate his concurrence or non-concurrence with the PEB's findings.

	a.  If he had been found unfit for continued service, he may demand a formal hearing if he believed he could satisfactorily continue to perform his duties despite his medical condition.  He should also submit a written statement explaining why he should be found fit for duty and the PEB will reconsider his case.  As a non-duty related case, the PEB could only address the issue of fitness.

	b.  If he had been found fit for duty, he was not entitled to a formal hearing, but he could submit a written appeal for reconsideration.

	c.  He was required to indicate his concurrence or non-concurrence within 10 days and his written appeal must be submitted within 10 days.  If his election was not received within the 10-day period, his concurrence would be presumed and his case would be forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final action.  Failure to return his election within 10 days could result in the recommendations of the PEB being implemented.

7.  On 26 September 2003, the applicant elected not to concur with the PEB's findings and recommendations but waived a formal hearing of his case.  He further elected to submit a written appeal.  In his appeal, he indicated that he waived his right to a formal hearing as he believed there was no additional information he could provide to the PEB regarding the issue of unfitness that had not already been provided.  However, as he believed he could continue to satisfactorily perform his military duties in the future, he requested to be continued in an active status with a waiver of the disqualifying medical condition. 
He further requested his case be forwarded to the CAR for a final determination with subsequent referral to the DCS G-1 if the CAR and doctor could not agree on his issues.

8.  On 31 October 2003, USAPDA reviewed the applicant's non-duty related PEB and determined that the applicant was unfit for duty.  USAPDA approved the PEB Proceedings on behalf of the Secretary of the Army (SA).  It is unclear if USAPDA received and/or reviewed his appeal, dated 26 September 2003.

9.  On 4 November 2003, an official at USAPDA notified the Commander, USAHRC-St. Louis, by memorandum that the PEB action was forwarded to his office for disposition.  The PEB determined that the applicant was unfit for duty.

10.  On 23 August 2004, the USAHRC-St. Louis Command Surgeon requested by memorandum the applicant's separation from the USAR based on USAPDA's findings of unfitness and indicated that the applicant was no longer a mobilization asset.

11.  On 7 November 2005, the applicant was honorably discharged from the USAR.

12.  On 11 October 2008, the applicant petitioned the Army Board for Correction of Military Records for correction of his records to show he was transferred to the Retired Reserve.

13.  On 31 March 2009, an official at USAHRC-St. Louis opined that since the applicant was found physically unfit, he should have been afforded the opportunity to request a transfer to the Retired Reserve.  Accordingly, his discharge orders were voided.

14.  On 1 April 2009, USAHRC-St. Louis published new orders releasing the applicant from the USAR Control Group (Reinforcement) and reassigning him to the USAR Control Group (Retired Reserve) effective 25 March 2009.

15.  An advisory opinion was obtained on 16 November 2009 from OCAR.  An official at OCAR GOMO stated that due to the unique nature of USAR GOs, the GOAAB is a voluntary board and no reconsideration board will be conducted.  The records indicate that the applicant was removed from consideration from the 2004 and 2005 GOAAB before the convening date of each board.  The reason for his removal was his failure to meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The All Army Activities (ALARACT) message that governed the GOAAB announced the eligibility requirements for the GOAAB which clearly stated that the officer must have a current retention physical under Army Regulation 40-501.

16.  The applicant provides the following documentation in support of his request:

	a.  a copy of his resume, an addendum to his resume, a summary of experience and qualifications, and a copy of a memorandum addressed to the President of the 2005 GOAAB, dated 27 April 2004, in which he provides additional background information about his leadership abilities and experience which was not found elsewhere in his resume;

	b.  a copy of an undated supervisor's statement, authored by the GC, who remarked that the applicant had performed his duties in an outstanding manner and that there was no indication that his heart condition affected his duty performance.  His duties were primarily sedentary with limited opportunities for physical exertions and that should he ever be mobilized, the same would remain true;

	c.  copies of his two OERs for the periods 2 December 2002 through 13 December 2002 and 11 September 2000 through 22 September 2000 that show ratings of "outstanding performance-must promote" and "best qualified," and comments such as "a future leader with GO potential";

	d.  a copy of his War College AER, dated 19 July 2002, that shows he achieved the U.S. Army War College academic standards for written and oral presentations, preparation, and participation, and that he was awarded a Master of Strategic Studies degree.

17.  ALARACT Message 057-2003, dated 24 February 2003, announced the eligibility criteria for the 2004 Reserve GOAAB criteria and ALARACT Message 044-2004, dated 24 March 2004, announced the eligibility criteria for the 2005 USAR GOAAB.  Both messages stated, in pertinent part, that all officers must meet the height/weight or body fat standards of Army Regulation 600-9 (The Army Weight Control Program) and have a current retention physical under Army Regulation 40-501, dated on or after 1 December 1999.  Officers must meet the physical fitness standards of Army Regulation 350-1 (Army Training and Leader Development) and have successfully completed the APFT on or after 1 December 2003.

18.  Army Regulation 135-156 (Reserve Components General Officers Personnel Management) establishes policies and procedures for the personnel management of RC officers of the Army National Guard and USAR who are on the Reserve Active Status List to and within GO grades.  If the policies and procedures established by this regulation conflict with those of any other Army Regulation or National Guard Regulation, then this regulation shall be considered the controlling policy unless otherwise required by law.

19.  Army Regulation 135-156 states, in pertinent part, that the OCAR GOMO will provide nominations for various RC GO assignments identified by DA GOMO to include active duty or joint service assignments.  The appropriate RC executive agent will ensure that officers are available for assignment and that any losing command coordination has been accomplished.  DA GOMO will then staff the nominations with the proponent agency.  The SA or Chief of Staff of the Army (CSA), as appropriate, will approve the assignment or make a recommendation to the Chairman, Joint Chiefs of Staff, as necessary.  The assignment of special branch officers to RC GO positions will be coordinated with and approved by TJAG, the Chief of Chaplains, or The Surgeon General, as appropriate.

20.  OCAR GOMO is responsible for identifying its respective population for GO selection and advisory boards and will assist with updating and preparing board consideration files for each eligible officer, as appropriate.  OCAR GOMO will establish procedures for candidates, to include file preparation formats and suspense dates for submission of required documents, consistent with guidance furnished by DA GOMO.  Officers who fail to fully comply with the established suspense dates and procedures may render themselves ineligible to have their files considered by the board.  For every RC GO board convened by the SA, the SA will provide a memorandum of instruction prescribing approved board procedures that must be followed by members of the assignment advisory board, promotion selection board, or Federal recognition board, as appropriate.

21.  A USAR GOAAB will be convened annually by the SA to consider USAR officers for assignment to GO positions during the assignment year beginning 1 April and ending 31 March.  Immediately following the recess of the non-statutory GOAAB, the SA will convene USAR GO Promotion Selection Boards (GOPSB) pursuant to Title 10, U.S. Code, section 14101(a), and Title 10, U.S. Code, section 14315(b), to consider eligible officers for promotion based on the assignment recommendations of the GOAAB.  DA GOMO will issue the SA's eligibility criteria for each year's boards via message and OCAR GOMO will issue board guidance via electronic mail.  The GOAAB will produce order of merit lists that will serve as the basis for the CSA and CAR to make GO assignment recommendations to the SA.  For administrative convenience, the annual GOPSBs are conducted as a series of consolidated vacancy promotion boards. Each COL/O-6 and BG/O-7 who is recommended on a GOAAB order of merit list for assignment to a position of the next higher grade will be considered by a GOPSB.

22.  Chapter 8 of Army Regulation 135-156 states that the RC GOs must meet the physical fitness standards prescribed in Field Manual 21-20 (Physical Fitness Training) and Army Regulation 350-1.  Army GOs who do not meet these standards or the mission-related physical fitness standards required by their duty assignments may be subject to administrative action.  The APFT is administered annually to RC GOs.  A copy of the test results must be forwarded to OCAR GOMO for inclusion in the RC GO's file.

23.  In accordance with health affairs policy for active duty and Selected Reserve members, the Army requirement for a periodic (5-year) physical was replaced (effective 1 November 2006) by an annual periodic health assessment (PHA).  The PHA will focus on individual medical readiness and prevention.  The GO physicals will be performed every other year, with the PHA performed during alternate years.  Army requirements for other physicals (retirement, special schools, aviator, over-40 cardiovascular screening) will remain unchanged.  

24.  Title 10, U.S. Code, section 14502(b), states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board to determine whether the officer should be recommended for promotion, if the Secretary determines that (a) the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error or (b) the selection board did not have before it for its consideration material information.

25.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers).  Paragraph 3-19 provides for promotion reconsideration boards and states that officers and warrant officers, who have either failed of selection for promotion or who were erroneously not considered for promotion through administrative error, may be reconsidered for promotion by an SSB.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be considered by an SSB in on the basis of having been previously not considered because of an administrative error.  He raises two issues:  medical unfitness and promotion consideration to BG by an SSB:

2.  With respect to his medical unfitness:

	a.  The evidence of record shows the applicant was diagnosed with a partially blocked heart valve that in time would have required heart valve replacement surgery.  He subsequently underwent a non-duty related PEB that determined that an aortic valve replacement would likely be required at some point in the not too distant future.  The PEB further added that based on the severity of his heart condition, the PEB did not believe his physical profile provided adequate protections for him.  The physical exertion required to obtain a passing score on a timed event would pose an unacceptable risk to the applicant and could lead to surgery under emergency conditions.  Based on a review of the medical evidence of record, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and primary specialty.  The PEB was approved on 12 September 2003.

	b.  The applicant was then notified that he was required to indicate his concurrence or non-concurrence within 10 days and his written appeal must be submitted within 10 days.  If his election was not received within the 10-day period, his concurrence would be presumed and his case would be forwarded to USAPDA for final action and that failure to return his election within 10 days could result in the recommendations of the PEB being implemented to concur or non-concur within 10 days.  It is unclear, however, if he was served the PEB Proceedings on the same date (12 September 2003)

	c.  The applicant submitted a non-concurrence statement on 26 September 2003.  He indicated that there was no additional medical evidence with regard to his fitness he could submit, but he argued that his performance as a JAG officer was not affected by his heart condition.  It is also noted here that the applicant's non-concurrence appears to have been more of a request for a waiver of his medical condition, not so much as an appeal.

	d.  On 31 October 2003, USAPDA reviewed the applicant's non-duty related PEB, determined that the applicant was unfit for duty, and approved the PEB Proceedings on behalf of the SA.  It is unclear if USAPDA, acting on behalf of the SA, reviewed the applicant's waiver of his medical condition.  However, given that his appeal statement was neither submitted within the 10-day window nor, by his own admission, did it contain any additional medical evidence regarding his fitness, it is therefore reasonable to presume that USAPDA would have reached the same conclusion of unfitness for retention.

	e.  The applicant's failure to respond within the 10-day window and failure to indicate his election to be transferred to the Retired Reserve led to his honorable discharge.  However, as a matter of equity and as a result of being found to be medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, USAHRC officials corrected his records by issuing him an order transferring him to the Retired Reserve.

3.  With respect to his promotion to BG, the evidence of record shows that the applicant was removed from consideration from the 2004 and 2005 GOAAB before the convening date of each board.  The reason for his removal was his failure to meet the medical retention standards of Army Regulation 40-501.  An officer being considered by a GOAAB is eligible for consideration provided the officer is otherwise qualified.  The applicant was not qualified for consideration since he was not medically qualified.  Additionally, the GOPSB is a voluntary board.  SSBs are authorized for promotion reconsideration up to the grade of COL.  There is no provision in the regulation for a GO SSB because such boards are not mandatory promotion boards, but position vacancy boards.

4.  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 did not submit evidence that would satisfy this requirement.  In view of the foregoing, the applicant is not entitled to 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)                                         AR20090012031



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ABCMR Record of Proceedings (cont)                                         AR20090012031



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