BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110014192 


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, placement on the retired list in the rank/grade of lieutenant colonel (LTC)/O-5, the highest grade that he held.

2.  The applicant states he believes he should be retired as a LTC since he completed the required years for the qualification of his rank and his DOR was 12 January 2005.  He requested retirement in lieu of elimination proceedings that were due to a severe back injury he received while deployed to Japan.  He ended up in treatment for years following his injury until the end of his enlistment.  He does not feel he should be penalized for something that was not his fault.  He was marked as a substandard performer, but his raters and senior raters knew the reason why he could not perform the Army Physical Fitness Test (APFT).  He was not going to aggravate his situation and possibly become paralyzed from the waist down for exerting pressure on his spine.  If he met the requirements of his current rank, the Army does not have a reason to downgrade him to the rank/grade of major (MAJ)/O-4.  He is proud of serving his country for the last 33 years and sees this action as an injustice to his career.

3.  The applicant provides:

* A memorandum, subject:  Officer Grade Determination Case, pertaining to himself
* His retirement orders
* Four pages from TRANSPOC (Military Personnel Transition Processing)


* Five DA Forms 3349 (Physical Profile)
* Optional Form 522 (Medical Record – Request for Administration of Anesthesia and for Performance of Operations and Other Procedures)
* Two Standard Forms (SF) 519-B (Radiologic Examination Report)
* Four SFs 600 (Chronological Record of Medical Care)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) on 10 August 1984.  He served in staff and leadership positions both on active duty and in the USAR.  He was promoted to MAJ on 1 November 1998 in the Military Intelligence (MI) Branch and to LTC on 12 January 2005.

2.  He was assigned to the 9th Theater Support Command (TSC), Troop Program Unit, Fort Belvoir, VA.  During the month of June 2006, he received a referred change of rater Officer Evaluation Report (OER) which covered 5 months of rated time from 1 October 2005 through 8 March 2006 for his duties while serving as the assistant chief of staff, G-6.  His rater was a colonel (COL) and his senior rater was a brigadier general (BG).  The OER shows he failed the APFT in November 2005 and contains the following entries:

	a.  In Part Va (Performance Potential Evaluation), the Rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments:

[Applicant] is an excellent officer dedicated to providing the best automation support possible for the command.  During the Yam Sakura 49 training exercise conducted at Fort Lewis, WA in January 2006, he and his team effectively maintained connectivity.  He needs to pass his record APFT to remain competitive.  He failed the sit-up portion of his most recent APFT; however, he has been making an effort to improve this.  He has good potential, promote with peers.

	b.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified" block, rated him as "Center of Mass," and entered the following comments:

[Applicant] has good potential, but is not competitive until he passes the APFT.  I cannot in good conscience recommend him for promotion.


3.  During the month of April 2007, he received a referred annual OER which covered 12 months of rated time from 28 March 2006 through 27 March 2007 for his duties while serving as the assistant chief of staff, G-2, for the 377th TSC, Camp Arifjan, Kuwait.  His rater was a COL and his senior rater was a major general (MG).  The OER shows he failed the APFT in November 2006 and contains the following entries:

	a.  In Part Va, the Rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments:

[Applicant] has become functionally capable at the TSC G-2 staff officer level during this deployment.  He failed the APFT for the rating period.  He has been working on passing this requirement and intends to pass the APFT during the upcoming April 2007 timeframe.  He should be considered for promotion after acquiring more experience at this grade.

	b.  In Part VIIa, the Senior Rater placed an "X" in the "Fully Qualified" block, rated him as "Below Center of Mass," and entered the following comments:

[Applicant] was initially overwhelmed by the assignment as this command's Intelligence Officer.  He worked hard to improve his intelligence products and focus.  I do not recommend him for promotion due to his failure to pass the APFT for over 4 months after failing. 

4.  On 23 July 2007, he was ordered to active duty for a period of 3 years and assigned to the U.S. Army Test and Evaluation Center, Alexandria, VA.  During the month of June 2008, he received a referred annual OER which covered 12 months of rated time from 28 March 2007 through 27 March 2008 for his duties while serving as the test and evaluation officer for intelligence-related systems.  His rater was a COL and his senior rater was a senior executive service (SES) civilian.  The OER shows he failed the APFT in April 2008 and did not meet the Army height and weight requirements.  The OER contains the following entries:

	a.  In Part Va, the Rater placed an "X" in the "Outstanding Performance, Must Promote" block and entered the following comments:

[Applicant] did a solid job in supporting the test and evaluation of urgent intelligence-related materiel solutions for deployed Warfighters.  


While he demonstrated technical savvy in accomplishing most of his performance objectives, he did not maintain his physical fitness level and failed the APFT.  He is now taking steps toward meeting the standard.  Strong potential, promote with peers. 

	b.  In Part VIIa, the Senior Rater placed an "X" in the "Best Qualified" block, rated him as "Center of Mass," and entered the following comments:

[Applicant] performed strongly in a uniquely demanding assignment.  Promote with peers. 

5.  During the month of April 2009, he received a referred annual OER which covered 12 months of rated time from 28 March 2008 through 27 March 2009 for his duties while serving as the senior evaluation officer for intelligence-related systems.  His rater was a COL and his senior rater was an SES.  The OER shows he failed the APFT in December 2008 and did not meet the Army height and weight requirements.  The OER contains the following entries:

	a.  In Part Va, the Rater placed an "X" in the "Outstanding Performance, Must Promote" block and entered the following comments:

Solid performance, [Applicant] led the T&E planning for urgent intelligence-related systems for deployed Warfighters.  While he demonstrated technical savvy in accomplishing his performance objectives, he did not maintain his physical fitness level and failed to meet the Army weight and APFT standards.  Strong potential, promote with peers.

	b.  In Part VIIa, the Senior Rater placed an "X" in the "Fully Qualified" block, rated him as "Below Center of Mass," and entered the following comments:

[Applicant] continued to perform strongly.  Promising potential, promote with peers. 

6.  On 18 February 2010, by memorandum, the U.S. Army Human Resources Command (HRC) notified him that he was identified by the fiscal year (FY) 09 COL Promotions Selection Board to show cause for retention on active duty because of substandard performance of duty.  The action was based on a series of substantiated derogatory activity resulting in four referred OERs and a Letter of Reprimand that were filed in his Official Military Personnel File.  After reviewing his overall record, the board recommended the applicant be required to show cause for retention or elimination 


7.  On 1 June 2010, the applicant submitted a request to be retained on active duty and termination of elimination proceedings until he reached 20 years of active service on 1 August 2011.  On 22 April 2011, he submitted a request for retirement in lieu of elimination and requested placement on the retired list as of 1 November 2011.

8.  On 25 May 2011, the Army Grade Determination Review Board reviewed his request for retirement in lieu of elimination.  His retirement in lieu of elimination was approved and it was determined he would be placed on the retired list in the rank/grade of MAJ/O-4.

9.  Orders Number 188-0007, issued by U.S. Army Garrison, Fort Belvoir, VA, dated 7 July 2011, honorably retired the applicant from active duty effective 
31 October 2011 and placed him on the retired list effective 1 November 2011 in the rank of MAJ.

10.  The applicant provides five DA Forms 3349, dated between April 2009 and December 2010, wherein he was given temporary physical profiles for lower back pain.  The DD Form 3349, dated 1 April 2009 prevented him from taking the
sit-ups portion of the APFT.  The other four DA Forms 3349 prevented him from taking the APFT in all three events (2-mile run, sit-ups, push ups).

11.  Title 10, U.S. Code, section 1370 provides an officer will be retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the military department concerned.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was serving in the rank of LTC when he was identified by the FY 09 COL Promotions Selection Board to show cause for retention on active duty because of substandard performance of duty.  In response to this action, he requested retention on active duty and termination of elimination proceedings until he reached 20 years of active service for retirement.  He subsequently submitted a voluntary request for retirement in lieu of elimination which was approved effective 31 October 2011 with placement on the Retired List in the rank of MAJ as of 1 November 2011.

2.  While the evidence of record shows he consistently failed the APFT since 2005, his substandard performance of duty was based on a review of his complete record and not just this fact.  Additionally, he has not shown that any medical conditions justified his failure to pass the APFT since 2005.


3.  His service in the rank of LTC was not satisfactory; therefore, he was properly placed on his retired list in the rank of major as directed by the Secretary of the military department concerned.  Therefore, he is not entitled to the requested relief.

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)                                         AR20110014192



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ABCMR Record of Proceedings (cont)                                         AR20110014192



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