IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110017724 


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 records to show he was promoted to the rank/grade of sergeant (SGT)/E-5 prior to his placement on the Temporary Disability Retired List (TDRL).

2.  The applicant states he was medically retired in a lower grade without the benefit of a review by the Army Grade Determination Review Board (AGDRB).  He further states he was denied promotion to the rank of SGT at the time of his medical retirement due to a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) – for being overweight while he had a physical profile for a back injury – which was placed on his records on 5 August 2009.  He states his commander was not supposed to initiate a flagging action until he was released from his physical profile.  He also claims he was later denied promotion because he was in the process of a medical evaluation board (MEB).  He was later informed of Military Personnel (MILPER) Messages 05-084 and 09-067 to support his case.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings) and associated documents
* DA Form 3947 (MEB Proceedings) and associated documents
* Orders 257-0606, dated 14 September 2010
* DA Forms 4856 (Developmental Counseling Form)
* DA Forms 3349 (Physical Profile)
* Enlisted Record Brief (ERB), dated 6 January 2010
* AAA-294 (Enlisted Promotion Report), dated 3 May 2010
* DA Form 268
* DA Forms 5500 (Body Fat Content Worksheet – (Male))
* three pages of prescription medication information

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army in the rank/grade of private/E-1 on 15 November 2006 for a period of 3 years and 20 weeks.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13T (Field Artillery Surveyor).  He was assigned to 4th Battalion, 320th Field Artillery Regiment, Fort Campbell, KY.  He was promoted to the rank/grade of specialist (SPC)/E-4 on 1 June 2008.

2.  The applicant's records show he served in Afghanistan in support of Operation Enduring Freedom from 24 March 2008 to 19 March 2009.

3.  His records further show he was awarded the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Afghanistan Campaign Medal with two bronze service stars, Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon, North Atlantic Treaty Organization Medal, and Combat Action Badge.

4.  He provides a DA Form 268 which shows his immediate commander initiated a flag against the applicant for weight control on 5 August 2009.

5.  On 6 August 2009, he received counseling for exceeding the Army body fat standards prescribed in Army Regulation 600-9 (The Army Weight Control Program).  A DA Form 4856 completed at that time shows he exceeded the body fat standard by 4.00 percent.  He was notified he was required to take a medical evaluation memorandum to the hospital to have medical personnel determine whether his weight control problem was a result of a medical condition.  His record does not contain and he did not provide the results of his medical evaluation for weight control.

6.  He provides DA Forms 3349 showing he received temporary physical profiles from 13 August 2009 through 17 December 2009 based on a diagnosis of lower back pain.  The forms show he was not allowed to run, jump, ruck march, or perform repetitive forward bending, flutter kicks, sit-ups, push-ups, or pull-ups.  The applicant was able to lift to tolerance and he was highly endorsed to use the pool to walk or swim during unit physical training time.

7.  The applicant provides a DA Form 3349 which shows he received a permanent physical profile for lower back pain (degenerative disk disease) on 18 December 2009 and he was recommended for an MEB.  The physical profile continued to allow the applicant to walk, bike, or swim at his own pace and distance in addition to performing upper and lower body weight training.

8.  The applicant provides the Enlisted Promotion Reports for June and July 2010 promotion eligibility.  Both reports indicate the applicant was denied promotion action by his immediate commander as the result of his entry in the weight control program.

9.  The applicant provides a DA Form 4856, dated 10 June 2010, which shows he was not recommended for promotion due to failing to meet the body fat standard of Army Regulation 600-9.

10.  He also provides a DA Form 4856, dated 23 August 2010, which shows he was counseled for ineligibility for promotion to the rank of SGT due to his enrollment in the MEB process.

11.  His records contain an ERB, dated 14 September 2010, which shows he remained flagged for weight control with an effective date of 5 August 2009.

12.  His records contain and the applicant provides Orders 257-0606, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 14 September 2010, which show he was to be placed on the TDRL in the rank of SPC effective 28 November 2010.

13.  The applicant provides an undated copy of a prescription.  Highlighted in the side-effects section of the document is the phrase "weight gain."

14.  Army Regulation 600-9 states healthcare personnel will evaluate an overweight Soldier when a Soldier has a medical limitation, when an evaluation is requested by a unit commander, or when separation is being considered for failure to make satisfactory progress in a weight control program.

15.  Army Regulation 40-501 (Standards of Medical Fitness) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  It states a DA Form 3349 will not be used to excuse Soldiers from the provisions of Army Regulation 600-9.  The inability to perform all Army Physical Fitness Test events or the use of certain medications is not generally considered sufficient medical rationale to exempt a Soldier from the provisions of Army Regulation 600-9.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-10 lists conditions in which Soldiers are considered to be in a non-promotable status.  It states Soldiers (SPC through master sergeant) are non-promotable to a higher grade when the Soldier has incurred a flag under the provisions of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions).

17.  Paragraph 1-11 of Army Regulation 600-8-19 states that when a delay of promotion has occurred because of a flag, the following rules apply once the final DA Form 268 has been prepared.  The Soldier's promotion status will be determined as follows:

	a.  If the flag is lifted with the disposition "case is closed favorably" and he or she would have been promoted while the suspension of favorable personnel actions was in effect, he or she will be promoted, provided otherwise qualified.  The effective date and date of rank (DOR) will be the date the Soldier would otherwise have been promoted.

	b.  If the Soldier's final report is closed with "disciplinary action taken" and he or she would have been promoted while the suspension of favorable personnel actions was in effect, he or she will be promoted unless action has been initiated to remove the Soldier from the recommended list, provided otherwise qualified.  The effective date and DOR will be the date following the removal of the suspension of personnel actions.

	c.  If the Soldier's final report is closed with "other final action" (applies to the Army Weight Control Program, Army Physical Fitness Test, and Army Substance Abuse Program) and he or she would have been promoted while a flag was in effect, he or she will be promoted, provided otherwise eligible.  The effective date and DOR will be the effective date of the removal of the suspension of the flag.

18.  MILPER Message 05-84, dated 4 April 2005, subject:  Enlisted Eligibility Regarding Enlisted Soldiers Undergoing Evaluations by the MOS/Medical Retention Board (MMRB), MEB, or PEB, provides clarification to provide consistency with regard to promotion eligibility for enlisted Soldiers undergoing MMRB/MEB/PEB.  It states that Soldiers who are pending referral to or action by an MMRB, MEB, or PEB will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion.

19.  MILPER Message 09-067, dated 25 March 2009, subject:  Consolidated Army Transition Center Policy and Procedures for Disability Evaluation System Separation Processing, provides guidance on policy and procedures to installation transition centers to accomplish separation processing of Soldiers separating due to disability.  It states that enlisted Soldiers who are on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, under the provisions of Army Regulation 
600-8-19, the Soldier will be promoted to the designated grade effective the day before placement on the Retired List.

20.  Paragraph 3-17 of Army Regulation 600-8-19 states that each month, Active Army Soldiers in all MOS's who have 46 months of time in service (to become eligible for promotion at 48 months), 10 months of time in grade (to become eligible for promotion at 12 months), are otherwise not ineligible in accordance with this regulation, and not otherwise denied by the commander, will be automatically integrated onto the SGT promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance.  Soldiers must have a minimum of 90 days remaining service as of the month of integration onto the recommended list.  If the commander determines that a promotion is to be denied, the unit commander will take action to deny list integration prior to the 15th of the month the Soldier's name is identified for list integration.  Failure to deny integration by the 15th of the month the Soldier attains eligibility will result in the Soldier being integrated onto the promotion standing list.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to show he was promoted to the rank/grade of SGT/E-5 prior to his placement on the TDRL.

2.  The applicant's body fat percentage exceeded Army standards.  He was given several months to make progress, but failed to do so.  As a result, he was not eligible for promotion.

3.  The record shows he was diagnosed with degenerative disk disease and he was given a physical profile based on this diagnosis.  The physical profiles he provides show he was able to participate in fitness activities such as weight training, walking, biking, and swimming.  His record does not contain and he did not provide the results of his medical evaluation for weight control; therefore, it is reasonable to presume the applicant was medically cleared to participate in a weight control program based on the numerous counseling forms and body fat content worksheets provided.  The physical fitness activities he was capable of, when combined with an appropriate diet, should have resulted in weight loss and/or a reduction in his body fat percentage.

4.  The record does not show and the applicant has not provided evidence which shows he had a medical condition that caused him to gain weight or prevented him from losing weight.  His immediate commander rightfully initiated a flagging action in August 2009 which rendered the applicant unqualified for promotion and prevented his integration on the promotion list.  There is no evidence the flag was lifted prior to the applicant's placement on the TDRL.  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 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)                                         AR20110017724



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ABCMR Record of Proceedings (cont)                                         AR20110017724



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