IN THE CASE OF:
BOARD DATE: 25 March 2010
DOCKET NUMBER: AR20090016535
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 staff sergeant (SSG)/E-6.
2. The applicant states that during his military service as a military police (MP), the promotion points were always very high. He adds that he only had around 750 points and could not get promoted. However, while he was in a medical hold status, the promotion points dropped below 750, but he was not promoted.
3. The applicant does not provide any additional 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 applicants 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 applicants 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 he enlisted in the Regular Army on
27 December 1974 and he was honorably released from active duty on
11 December 1976. He again enlisted in the Army on 19 July 1977. On 1 July 1978, he was promoted to the rank/grade of sergeant (SGT)/E-5.
3. A DA Form 3355 (Promotion Point Worksheet) shows the applicant appeared before the E-6 promotion board and was recommended for promotion to E-6 in military occupational specialty 95B (MP). He was placed on the promotion list effective August 1986 with 759 points.
4. In August 1987 the applicant's promotion points were reevaluated and he received 758 points.
5. On 1 December 1987, a Medical Evaluation Board (MEB) convened and referred the applicant to a Physical Evaluation Board (PEB). The MEB proceedings show the applicant had a "4" in his physical profile serial code (PULHES) for lower extremities with comments of "non-uniform footwear on left foot authorized and no physical training. Maximum 8-hour work day."
6. On 28 December 1987, a PEB convened and found the applicant unfit for continued service and recommended a combined disability rating of 40 percent. The applicant concurred with the findings and recommendations of the board. He requested and was granted permission to remain on active duty until completion of his medical treatment.
7. On 22 February 1988, the applicant was assigned to the Medical Holding Company, Walter Reed Army Medical Center, Washington, D.C.
8. On 31 October 1988, the applicant was honorably retired and placed on the Temporary Disability Retirement List (TDRL) in the grade of E-5. He was removed from the TDRL and permanently retired on 22 January 1990.
9. Army Regulation 600-200 (Enlisted Personnel Management System) in effect at the time, states that Soldiers being separated for physical disability with entitlement to disability severance pay are in a nonpromotable status.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant was assigned to a Medical Holding Company on 22 February 1988 after he was determined to be unfit by a PEB with a disability rating of 40 percent. Therefore, he was in a nonpromotable status and as such, he was precluded from being promoted to E-6.
2. In view of the foregoing, there is no basis for correcting his records to show he was promoted to E-6.
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) AR20090016535
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ABCMR Record of Proceedings (cont) AR20090016535
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