IN THE CASE OF:
BOARD DATE: 15 June 2010
DOCKET NUMBER: AR20090015310
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 private first class (PFC)/E-3 and specialist (SPC)/E-4.
2. The applicant states she was denied promotion based on her medical status and despite receiving medical treatment, she received an Army Achievement Medal and certificates of appreciation and of recognition for excellence. She further states she passed her Army Physical Fitness Test (APFT) while under medical supervision and completed correspondence courses.
3. The applicant provides the following documents in support of her application:
* self-authored medical evaluation board (MEBD) appeal memorandum
* DA Form 751 (Telephone Verbal Conversation Record)
* DA Form 3349 (Physical Profile)
* first sergeant's fact sheet
* DD Forms 689 (Individual Sick Slips)
* battalion commander's MEBD memorandum
* three certificates of appreciation
* Command Sergeant Major's Award of Excellence Certificate
* Army Achievement Medal Certificate
* Course Completion Certificate and Ordnance Corps Certificate of Affiliation
* medical documents
* award recognition certificates
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 she enlisted in the Regular Army on 13 March 1996. She was advanced to the rank of private (PV2)/E-2 on 13 September 1996.
3. On 5 June 1996, orders were published authorizing the applicant award of military occupational specialty (MOS) 52D (Power Generator Equipment Repairer) upon completion of the 52D1O00OO course.
4. The applicant's record contains a memorandum from her advanced individual training (AIT) commander, dated 27 October 1997. It indicates the applicant was still assigned as an AIT Soldier and was not MOS qualified due to not having taken the APFT for medical profile reasons. It further indicates her performance had been good, but was limited by the restrictions of her physical profile. It also stated her ability to adequately perform her duties in MOS 52D was extremely limited by her current medical condition and she had not yet been awarded an MOS since the APFT is a prerequisite for graduation from AIT. It further indicated she did not meet Army body fat standards and would be flagged (suspension of favorable personnel actions).
5. A DA Form 3349 (Physical Profile) shows a permanent 3 profile in the lower extremities was approved for the applicant on 5 November 1997. This document shows the applicant was able to take the push-up and sit-up events of the APFT.
6. The record also contains a memorandum from the applicant's AIT battalion commander, dated 24 November 1997. It indicates she completed the academic requirements for graduation from AIT, but she could not graduate because she had not passed her APFT which was a prerequisite to graduate from AIT. It further indicated the applicant remained in a holdover status until medical authorities determined her status and that she had already been in this status for 455 days.
7. On 1 April 1998, a physical evaluation board (PEB) found the applicant unfit for further service based on chronic right hip and myofacial pain with a history of right acetabulum stress fracture and granted her a 10-percent disability rating. The PEB recommended the applicant's separation with severance pay.
8. On 14 April 1998, the applicant concurred with the findings and recommendation of the PEB and waived her right to a formal hearing. The PEB action was approved by proper authority on behalf of the Secretary of the Army.
9. On 3 June 1998, the applicant was honorably discharged in the rank of PV2/E-2 by reason of disability with severance pay. The DD Form 214 she was issued shows she completed 2 years, 2 months, and 21 days of active military service. Item 11 (Primary Specialty) lists MOS 52D1O and indicates 0 years and 0 months of service in the MOS.
10. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's policy for the promotion and reduction of enlisted personnel. Paragraph 1-20 contains guidance on promotion of Soldiers pending referral to an MOS/medical retention board (MMRB), MEBD, or PEB. It states Soldiers pending referral to an MMRB, MEBD, or PEB will not be denied promotion if already promotable on the basis of medical disqualification if they are otherwise qualified for promotion.
11. Chapter 2 of Army Regulation 600-8-19 provides guidance on decentralized promotions to PV2/E-2, PFC/E-3, and SPC/E-4. It states Solders will be promoted only in their primary PMOS or a career-progression MOS. There are no provisions for promoting a Soldier to PFC/E-3 or SPC/E-4 who does not hold an MOS. Commanders will either recommend or deny promotions on the Automated Advancement Report provided the Soldier is otherwise qualified and promotions will be automatically made via the Total Army Personnel Data Base.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she should be promoted to PFC/E-3 and SPC/E-4 because she was unfairly denied promotion based on her medical status has been carefully considered. However, the evidence is not sufficient to support this claim.
2. By regulation, members pending referral to an MMRB, MEBD or PEB will not be denied promotion if already promotable and otherwise qualified. Soldiers are promoted to PFC/E-3 and SPC/E-4 only in their primary MOS or career-progression MOS. The regulation does not provide for promoting members to these grades who have not yet been awarded an MOS.
3. The evidence of record does show the applicant's medical condition did appear to contribute to her not being promoted; however, it does not show she was unjustly denied promotion solely because of her medical processing. The applicant's AIT unit commander and battalion commander confirmed in October and November 1997 memoranda that the applicant did not meet the regulatory requirements necessary to graduate from AIT and/or to be awarded MOS 52D because she had not passed an APFT and did not meet Army body fat standards. As a result, it appears the applicant did not hold a valid MOS and was not otherwise qualified for promotion during her medical processing or at the time of her disability discharge.
4. The evidence fails to show the applicant's medical processing was the sole basis for being denied promotion. Absent evidence to the contrary, it appears the applicant did not qualify for promotion to PFC/E-3 or SPC/E-4 prior to her disability discharge. Therefore, there is an insufficient evidentiary basis to grant the requested relief.
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.
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) AR20090015310
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