IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110006061 


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 correction of his military records to show he was promoted to sergeant first class, pay grade E-7 and retired in such grade.  He further requests to receive all back pay and allowances due as a result of his correction.

2.  The applicant states his records are in error because of service related medical problems resulting from his time spent during Operation Desert Storm.  He contends that his medical conditions of post traumatic stress disorder (PTSD), chronic fatigue syndrome (CFS), fibromyalgia, and arthritis were not diagnosed when he returned from combat.  His medical conditions were not identified until years later.  He further contends that these medical conditions diminished his ability to perform as he did prior to his combat service.

3.  The applicant provides copies of:

* Memorandum, Regimental Noncommissioned Officers Academy, Fort Gordon, Georgia, dated 21 July 1994
* Memorandum, 9th Infantry Regiment, Fort Wainwright, Alaska, dated       3 August 1994
* DA Form 1059 (Service School Academic Evaluation Report), dated       30 August 1994
* Medical Statement, Dwight David Eisenhower Army Medical Center, dated 28 September 1994
* Vocational Evaluation, Department of Veterans Affairs (VA), dated          16 February 2007
* VA Rating Decision, dated 20 April 2007
* Social Security Administration Notice of Award, dated 23 March 2008
* Letter from VA Rehabilitation and Employment, dated 12 May 2009
* VA Form 28-8872 (Rehabilitation Plan), undated

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.  On 14 January 1980, the applicant enlisted in the Regular Army.  He served through a series of reenlistments, attaining the rank of staff sergeant, pay grade E-6.

3.  Orders Number 73-25, U.S. Total Army Personnel command, dated 24 May 1994, promoted the applicant to sergeant first class (SFC), pay grade E-7, with an effective date and date of rank of 1 July 1994.

	a.  Special Instructions stated that Soldiers promoted to SFC who did not have credit for [completion of the] Advanced Noncommissioned Officer Course (ANCOC) were promoted conditionally.

	b.  Those Soldiers conditionally promoted would have their promotion orders revoked and their names withdrawn from the centralized [promotion] list if they failed to meet the ANCOC requirement.

4.  Memorandum, Regimental Noncommissioned Officers Academy, dated 
21 July 1994, as provided by the applicant, states that the commandant had considered and subsequently directed his elimination from ANCOC because he had reported for training in an overweight condition and exceeding the maximum body fat limits.  The applicant acknowledged receipt of this action on the same day.  The applicant did not indicate whether he would appeal the elimination action.

5.  In a memorandum, dated 3 August 1994, provided by the applicant, the applicant's commander stated the applicant had not been on the overweight program in the previous 2 years, nor had he been on remedial physical training.

6.  A DA Form 1059, dated 30 August 1994, reports that the applicant was administratively released from ANCOC because he had reported for training in an overweight condition.

7.  A medical statement, dated 28 September 1994, as part of a Persian Gulf War Comprehensive Clinical Evaluation Protocol and provided by the applicant, states:

	a.  He was recently seen for complaints related to his service in the Persian Gulf;

	b.  he was found to have a low white blood cell count without a history of sores, fevers, malaise, or recurrent infections;

	c.  he was considered to have benign ethnic neutropenia that greatly contributed to an unusual fluctuation in his body fat content and weight gain; 

       (Neutropenia is a hematological disorder characterized by an abnormally low number of neutrophils, the most important type of white blood cell.  Neutrophils serve as the primary defense against infections by destroying bacteria in the blood.  Patients with neutropenia are more susceptible to bacterial infections and without prompt medical attention, the condition may become life-threatening).   

	d.  he weighed 199 pounds;

	e.  he was also found to have a urinary tract infection; and

	f.  he was prescribed a 2-week course of antibiotics.

8.  There is no evidence of record to if the applicant was placed on the weight control program after he returned to his unit after being disenrolled from ANCOC.

9.  On 30 June 1998, the applicant voluntarily retired early under the provisions of Army Regulation 635-200, chapter 12.  His retired rank was staff sergeant, pay grade E-6.  He had completed 18 years, 5 months, and 17 days of creditable active duty service.



10.  The VA vocational evaluation notes, as provided by the applicant, dated 
16 February 2007, state:

	a.  he was rated at 80 percent disabled for service connected conditions that included PTSD, shoulder, knee and foot injuries;

	b.  he had worked as a junior high school Reserve Officers' Training Corps (ROTC) instructor from 1998 to July 2005, when he was terminated due to the loss of his certification;

	c.  he had lost his certification due to PTSD and physical problems;

	d.  he was attending a university with a major in general studies with a goal of becoming a veteran's counselor;

	e.  he presented a long history of having difficulty interacting with people at work and with friends and family members;

	f.  he was observed by the psychologist:

* to be oriented, cooperative, and responsive
* to exhibit difficulty in focusing on a particular subject at times
* to experience problems in carrying out complex task instructions
* experienced impairment in processing new information
* extreme impairment in responding appropriately to supervision and to co-workers on the job
* cognitive functioning was estimated in the average range

   g.  the psychologist concluded that the applicant's symptoms had been present for over 12 consecutive months, were chronic in nature, and had an extremely poor prognosis for improvement; and

	h.  the applicant was neither employable nor was he feasible for vocational rehabilitation due to the severity of his physical and psychiatric problems (PTSD) and the poor prognosis for recovery.

10.  The VA Rating Decision dated 20 April 2007, as provided by the applicant, indicates his physical disabilities were rated as follows:

	a.  degenerative joint disease of right shoulder - increased from 10 to 
20 percent as of 30 June 2006;

	b.  PTSD - 50 percent continued from an unknown date;
	c.  residuals of cold injury with degenerative joint disease of right foot - increased from 20 to 30 percent as of 30 June 2006;

	d.  chondromalacia, right knee with degenerative joint disease - 10 percent continued from an unknown date;

	e.  hypertension - 10 percent continued from an unknown date;

	f.  tinnitus - 10 percent continued from an unknown date;

	g.  CFS -10 percent continued from an unknown date;

	h.  bilateral pterygium (eye condition, tearing and vision changes) zero percent continued from an unknown date; and

	i.  entitlement to individual un-employability was denied.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was promoted to SFC, pay grade E-7 and retired in such grade because he suffered from disabling medical conditions as a result of his service in the Persian Gulf.

2.  The available evidence of record clearly shows that the applicant was conditionally promoted to SFC effective 1 July 1994.  He was required to complete ANCOC in order to retain his promotion.  However, because he reported for this training in an overweight condition, he was eliminated from training.  

3.  Prior to reporting to ANCOC the applicant had not been on the overweight program, nor had he been on remedial physical training.

4.  He was subsequently found to have a medical condition (a low white blood cell count and benign ethnic neutropenia) that a doctor said greatly contributed to his overweight condition.  However, no sources were provided to back up that statement, and it is difficult to understand how a condition that renders one prone to infections causes weight gain.  

5.  There is no available evidence showing such medical condition was the direct result of his service in the Persian Gulf.  Further, if it was the result of his Persian Gulf service, it is difficult to understand why the purported symptoms of the condition (fluctuation in body fat content and weight gain), did not manifest themselves before he arrived at ANCOC.
 
6.  The evidence of record clearly shows the applicant continued to serve satisfactorily on active duty for almost 4 years after his elimination from ANCOC; at which time he voluntarily retired early in the grade of E-6.

7.  The applicant's continued satisfactory service on active duty indicates that his subsequent physical disabilities were not the cause of his elimination from ANCOC and loss of promotion.

8.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110006061



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006061



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1