BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090021566 


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 that his date of rank (DOR) to major be changed to
15 August 2009.

2.  The applicant states he became eligible for promotion to major when he successfully passed the Army Physical Fitness Test (APFT) on 15 August 2009.

3.  The applicant provides his DA Form 705 (Army Physical Fitness Test Scorecard), email correspondence addressing his promotion to major covering the period 25 August 2009 through 10 December 2009, and a DA Form 3349 (Physical Profile) dated19 August 2009.

CONSIDERATION OF EVIDENCE:

1.  On 14 April 1994, the applicant accepted an appointment as a second lieutenant in the United States Army Reserve (USAR) in the Military Intelligence career branch.  He was released from active duty on 13 April 1997 and transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation. 

2.  A DA Form 2808 (Report of Medical Examination), dated 23 April 2008, item 74a (Examinee/Applicant) shows the applicant was "not qualified for service, pending review by command authority."  On 5 June 2008, he was issued a permanent profile and he was required to go before a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) but he was allowed to take an alternate event for the APFT.
3.  On 15 August 2009, he was administered and passed the APFT.  The APFT failure flag was removed on 19 August 2009.

4.  On 19 August 2009, a Physical Review Board found the applicant did not meet the over 40 medical retention standard.  His permanent profile was revised but still indicated he required a MEB/PEB.  The U.S. Army Human Resources Command - ST. Louis (AHRC-STL), Surgeon General's office placed a permanent medical disqualification flag on the applicant's record the same day.

5.  On 9 December 2009, the permanent flag was changed to a temporary flag because he had never appeared before a medical board for final disposition.  He was promoted to major with an effective date and DOR of 9 December 2009.  

6.  He was transferred to the Retired Reserve effective 11 June 2010.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions Division, AHRC-STL.  The advisory official recommends denial of the applicant's request for an earlier DOR and effective date.  The advisory opinion states the applicant was "flagged for APFT failure.  The flag was removed and replaced with a flag for physical disqualification which remained in place until 9 December 2009.  Upon removal of the physical disqualification flag he was promoted."

8.  A Board staff member made additional inquiries and further determined the physical disqualification flag discussed in the advisory opinion is not a regulatory flag but more appropriately termed a personnel restriction code used to identify individuals with assignment, promotion, medical, and other limitations.  The initial physical disqualification code was a permanent code which was placed on the record in error.  On 9 December 2009, the AHRC-STL, Surgeon General's office corrected the error by replacing the permanent code with a temporary code which allowed the officer to be promoted to major.

9.  Two rebuttals were submitted by the applicant which summarily state the physical disqualification flag was placed on his record in error because he was not found medically unfit by the PEB until 11 June 2010.  

10.  The applicant submitted email correspondence referencing his attempts to have the APFT failure flag removed so he could be promoted to major.  


11.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function: 

	a.  Paragraph 1-13 (Circumstances requiring a transferrable flag) provides the specific actions and investigations that require a transferable flag.  This paragraph also instructs to remove the flag on the day the Soldier passes the APFT or at expiration term of service/mandatory release date.  

	b.  Paragraph 1-14 (Actions prohibited by a flag) states that a flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion and instructs the personnel service center to guard against accidental execution thereof.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) specifies that an officer recommended for promotion to the next higher grade must be medically qualified and promotions will be automatically delayed when the officer is under suspension of favorable personnel actions.

13.  The regulation also specifies the DOR and effective date of promotion after an involuntary delay due to any adverse administrative action will be the day after the date a filing of determination was made and/or removed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his promotion to major should be corrected to show a DOR of 15 August 2009, the date he passed his APFT, was carefully considered and there is sufficient evidence to grant relief.

2.  The evidence shows the applicant was issued two permanent profiles on 
5 June 2008 and 19 August 2009.  Both profiles indicate he did not meet the medical retention standards and he was referred to an MEB/PEB.  The DA Promotions advisory opinion states the applicant was originally flagged for APFT failure which was replaced with a Physical Disqualification flag.  The latter was removed on 9 December 2009.  Upon removal of the flag he was promoted to major effective the same day. 

3.  The evidence shows the initial permanent physical disqualification flag was initiated in error and he was eligible for promotion on 16 August 2009, the day after he passed his APFT.  His flag for APFT failure was removed on 19 August 2009; however, it should have been removed on 16 August 2009.

4.  Further, Army Regulation 135-155 states officers recommended for promotion to the next higher grade must be medically qualified.  Although his profiles required him to go before an MEB/PEB a determination of unfitness had not been made at the time he successfully passed his APFT on 15 August 2009.  Therefore, he is entitled to have the effective date and DOR for promotion to major changed to 16 August 2009, the day after the flag was removed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  ____x_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was promoted to major with an effective date and DOR of 16 August 2009.  The Defense Finance Accounting Service should review his record to determine if any back pay is due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the effective date and DOR to show 15 August 2009. 




      _______ _   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)                                         AR20090021566



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021566



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1