BOARD DATE: 15 July 2010
DOCKET NUMBER: AR20090021741
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, advancement on the retired list to pay grade E-7 or pay grade E-8.
2. The applicant states, in effect, that he believes that he met all of the requirements for promotion to pay grade E-8. He was unfairly reduced to pay grade E-6. He was sent to war while coping with an ongoing cardiac problem because he was not given a proper physical examination. The Army's medical system failed him and hindered his progression. Mission oriented protective gear and full combat gear added to the 100 plus degree heat, greatly increased his blood pressure, caused him to be disoriented, and he constantly fell or passed out. He also had back problems, "plantar fasciitis," and migraine headaches. He struggled with physical problems throughout his career and he suffers from post traumatic stress disorder (PTSD). His doctor told him not to drive. His wife was also in the military and had other commitments; therefore, sometimes he could not get to his medical appointments.
3. The applicant provides copies of significant portions of his service records [125 pages] which include medical records; Department of Veterans Affairs (VA) Rating Decisions; his 19 June 2009 personal statement with a summary of the court-martial specifications, pleas and findings; his 29 July 2009, letter; a DA Form 2823 (Sworn Statement),dated 12 August 2003; his DD Form 214 (Certificate of Release or Discharge from Active Duty; and an excerpt from an Army Times article about a General Accounting Office review of military medical record shortcomings.
CONSIDERATION OF EVIDENCE:
1. The applicant, a Regular Army sergeant first class (SFC) with a date of rank of 1 December 2001 and over 16 years of active service, was absent from his unit in Iraq from on or about 15 June to on or about 15 July 2003.
2. His medical records reflect the following events, he was:
* seen on 1 July 2003 for his required daily blood pressure check, he was precluded from running, jumping, marching, and wearing a rucksack or flak jacket
* evaluated on 2 July 2003 for complaints of low back pain from a fall weeks earlier, he reported being seen for this condition on 1 July 2003
* seen on 7 July 2003 due to further complaints of back pain and he was
reportedly unable to wear a flak jacket or participate in convoys
* issued a physical profile on 10 July 2003 that was due to expire on 15 September 2003 for chronic low back pain
* issued another physical profile on 12 July 2003 that was due to expire on 30 July 2003 for chest pain and hypertension
* seen on 20 July 2003 for uncontrolled hypertension and atypical chest pain and he was scheduled for medical evacuation on 22 July 2003
3. The applicant was medically evacuated from Iraq to Europe due to hypertension.
4. A DA Form 2823, dated 12 August 2003 from a staff sergeant in Iraq, states due to the applicant's health problems she checked his records and discovered that his Pre-Deployment Health Care Assessment Questionnaire was missing. When this was reported to the rear unit it was discovered that prior to deployment the applicant failed his over 40 physical examination.
5. The applicant was counseled, on 17 November 2003, about missing medical and/or therapy appointments. A TRICARE [the civilian component of the military healthcare system] mental healthcare provider reported that the applicant was seen on 1, 9, and 16 December 2003 and that he was diagnosed with PTSD.
6. The applicant was tried by general court-martial on 10 September 2004:
* he pled not guilty to being absent without leave (AWOL) from his unit in Iraq from 15 June to 19 July 2003 and he was found guilty of this charge
* he pled not guilty to failure to go to his place of duty (his 26 September 2003 cardiology appointment at Landstuhl Regional Medical Center) and he was found guilty
* he pled not guilty to two specifications of failure to go to his place of duty (two 30 September 2003 physical therapy appointments at Wuerzburg Medical Center) and he was found guilty
* he pled not guilty and was found not guilty to two specifications of being disrespectful towards commissioned officers
* he pled not guilty to four specifications of disobeying a lawful command from a commissioned officer and he was found guilty of three of the specifications and one was dismissed.
7. The sentence consisted of reduction to pay grade E-6, a forfeiture of $500 pay for 6 months, and confinement for 30 days.
8. On 21 April 2007, the applicant was separated due to permanent disability retirement.
9. On 18 November 2009, the Senior Legal Advisor, Army Review Boards Agency informed the applicant that the Army Grade Determination Board did not have jurisdiction over his request to be advanced on the retired list. He was advised to apply to this Board.
10. The VA has rated the applicant as 100 percent disabled for his various conditions.
11. Title 10, U.S. Code, Section 1372 provides that, "unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability...or whose name is placed on the temporary disability retired list
is entitled to the grade equivalent to the highest of the following:
(1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or if his name was not carried on that list, on the date when he is retired.
(2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.
(3) The permanent Regular Army or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.
(4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he believes that he met all of the requirements for promotion to pay grade E-8 but he was unfairly reduced to pay grade E-6.
2. The applicant was reduced to pay grade E-6 as part of the sentence of a general court-martial conviction. Other than the applicant's vague generalization that this was unfair there is no suggestion that anything was improper or unjust about the trial, conviction, or sentence.
3. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction was effected in accordance with applicable law and regulations, and the sentence was appropriate considering the misconduct for which the applicant was convicted.
4. The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial process and furnish no basis for adjusting his rank.
5. 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) AR20090021741
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