IN THE CASE OF:	    

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120002582 


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 promotion to colonel (COL)/O-6 be made retroactive to 2002 and that he be awarded back pay.

2.  He states he was selected for promotion to COL/O-6 in February 2002, but his promotion was delayed until June 2007.  The reason cited for the delay was failure to meet height and weight standards and failure to pass the Army Physical Fitness Test (APFT).  This was incorrect.  Multiple attempts to correct this through his chain of command were unsuccessful.  His APFT dated 4 May 2003 is a record "pass," and he was given a "go" for weight based on DD Form 5500-R (Body Fat Worksheet).  When it was finally approved, he thought his promotion would be retroactive to the date of selection, but it was not.  

3.  He provides:

* a DA Form 705 (APFT Scorecard)
* a DD Form 5500-R
* e-mail correspondence
* a self-authored statement

CONSIDERATION OF EVIDENCE:

1.  On 11 September 1987, the applicant accepted appointment as a Reserve commissioned officer of the Army in the Medical Corps (MC) in the rank/grade of captain/O-3.  He has served in an active status in the U.S. Army Reserve (USAR) since his appointment.  
2.  Effective 10 August 1992, he was promoted to major/O-4.  

3.  A DA Form 3349 (Physical Profile) shows, on 10 June 1997, a proper authority approved a permanent physical profile based on his low back and neck pain.  The form shows he was to walk as an alternate form of the APFT.  Item 9 (Other) shows the profiling officers recommended he undergo a Military Occupational Specialty/Medical Retention Board (MMRB).  

4.  A memorandum, dated 22 September 1997, subject:  Medical Evaluation Board/Physical Evaluation Board Referral (Applicant), shows an MMRB convened on 25 August 1997 and found his medical condition did not prevent him from performing the duties of his area of concentration.

5.  Effective 10 November 1998, he was promoted to lieutenant colonel 
(LTC)/O-5.

6.  His Officer Evaluation Report (OER) for the period ending 4 May 2001 shows in Part V (Performance and Potential Evaluation (Rater)) he did not meet height and weight standards of Army Regulation 600-9 (The Army Weight Control Program) and he was enrolled in the unit's weight control program.  The OER was referred to him, and he stated he maintained "he was mistaped and inappropriately on weight control."  He stated the issue took several months to correct.  

7.  His OER for the period ending 5 January 2002 shows in Part IV (Performance Evaluation - Professionalism (Rater)) he met height and weight standards.

8.  His record does not include OERs documenting his performance during the period 6 January 2002 to 9 February 2004.

9.  His name is included on a list of officers confirmed for appointment to 
COL/O-6 by the Senate on 17 October 2002.

10.  On 15 April 2003, his commander was informed of the results of the applicant's retention physical.  The notification memorandum shows he was found physically fit for retention and that he was over the maximum allowable weight (MAW).  

11.  On 22 September 2003, an entry was made in his transaction history in Integrated Web Services (IWS), a human resources management database maintained by the U.S. Army Human Resources Command (AHRC), showing he was selected for promotion to COL/O-6 by a 2002 board.  The entry shows his promotion eligibility was suspended for the APFT, height/weight, and valid position. 

12.  His transaction history in IWS shows, on 22 October 2003, AHRC informed a Regional Readiness Center (RRC) his promotion eligibility was suspended because he was not in a valid slot and had failed the APFT.  

13.  Part V of his OER for the period 10 February through 28 May 2004 shows the APFT was not administered during the rating period.  His rater stated his "personal fitness program resulted in tremendous improvement in his aerobic capacity and endurance." 

14.  His transaction history in IWS shows, on 5 January 2005, AHRC informed the 77th RRC his promotion eligibility was suspended for an outdated APFT and MAW.

15.  His record includes a Personnel Qualification Record (Officer), dated 14 August 2007, showing his promotion eligibility date as 9 November 2003.  

16.  His transaction history in IWS shows, on 23 July 2007, an AHRC staff member contacted him regarding his suspended promotion to COL/O-6.  The staff member informed him his record showed a pending personnel action for APFT failure and exceeding MAW.  He informed the applicant that to overcome his promotion suspension, he would need to take and pass both the APFT and height/weight tests, have his unit personnel office update his status in the Regional Level Application Software, and then have his unit submit a U.S. Army Reserve Command (USARC) Form 56-R (Promotion Qualification Statement for USARC Mobilized [Troop Program Unit] Officers).  

17.  A USARC Form 56-R, dated 14 August 2007, shows he had passed the APFT and that his height/weight was within the requirements of Army Regulation 600-9.

18.  On 15 August 2007, AHRC issued Orders B-08-705908 promoting him to COL/O-6 effective 23 June 2007.  

19.  He provides a DA Form 705 (APFT Scorecard) showing, on 4 May 2003, he was a "go" for height and weight.  He did not perform the standard APFT events due to a profile, but he was a "go" for an alternate APFT event (walk).  The form is stamped "Record Pass."  The form shows the APFT Noncommissioned Officer in Charge (NCOIC) signed the form and provided her initials in the blocks verifying he was not to perform the standard APFT events based on his profile.  

20.  He provides a DA Form 5500-R (Body Fat Content Worksheet (Male)), dated 4 May 2003, showing he was within compliance with Army height and weight standards.

21.  He provides an e-mail thread showing he corresponded with the 77th RRC Inspector General (IG) during March and May 2004.  He inquired about the status of his promotion, and the IG informed him that, as an MC officer, he could be promoted overgrade by submitting through his chain of command a USARC Form 56-R showing he was in a LTC position, a DA Form 705 showing a current passing APFT, and a "tape test" showing he met body fat standards.  

22.  His self-authored statement follows:

After notification of selection in [April] 2002, I requested that my unit (the 8th Medical Brigade) submit the documentation to award my promotion.  I spoke with several personal [sic], but the promotion did not take place.  I was told that the paperwork "must have been lost" and would need to be resubmitted by the unit.  When I was deployed in 2004 in Germany, I spoke with [the 77th RRC IG] and [was] instructed to resubmit this [sic] to the unit and was told at that point that the promotion would (should) be retroactive.  I subsequently found out that the promotion was not awarded because of failure of APFT and height and weight which was incorrect.  I submitted a copy of my pass/go to my unit, and waited, but nothing happened.  After a period of about eight months, I again submitted the documents as instructed by the unit.  I was mobilized again to Fort Drum and tried to get promoted while on active duty.  This was unsuccessful however as nobody I spoke with at Fort Drum was aware of how to go about this for an active reservist.  It took many months, over which time I called the unit and emailed them to resolve this, but generally did not get return calls of emails.  When I did, I was again told to resubmit the paperwork.  After 4 years of no success, I began looking into other options.  I was finally successful in getting promoted while on active reserve status at Fort Bragg ([June] 2007), but my promotion was not retroactive as I had expected.  The IG I contacted at Fort Bragg told me that I would have to wait until I was back at my unit to work this through the unit.  I was drilling in Utica, NY but was assigned to the 8th medical brigade [sic] and my communications were not answered.  In 24 years of service, I have been mobilized four times (1 1/2 years), have 23 good retirement years and have participated regularly in drills.

23.  On 20 March 2012, during the processing of this case, the Chief, Personnel Management Division, Headquarters, USARC, provided an advisory opinion recommending disapproval of his request.  

	a.  The advisory official states an AHRC Form 56-R (Promotion Qualification Statement), DA Form 705, and DA Form 5500-R were required as part of the promotion submission.  Per staff of the AHRC Promotions Branch, the AHRC Form 56-R on file for the applicant's promotion was submitted in August 2007 and indicates he was assigned to a valid position for promotion as of 23 June 2007.  

	b.  The advisory official states the applicant's record in IWS indicates he repeatedly failed the APFT and failed to meet height and weight standards until his promotion in 2007.  Per Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), flags issued for failure to pass the APFT and meet Army height and weight standards prohibit promotion.  Further, Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 4-11, states an officer selected for promotion cannot be under, or should be under, suspension of favorable personnel actions.  The criteria for "should be under" explain the entries found in the IWS transaction history for APFT failure and improper slotting for promotion.  

	c.  The applicant states the applicant provided a DA Form 705 showing he passed the APFT in 2003; however, there are inconsistencies on the form.  

		(1)  The form indicates he completed an alternate event based on his medical profile, but there is no permanent profile on file authorizing the alternate event.  

		(2)  The initials of the grader match the name of the NCOIC who signed the form indicating the possibility the event was not conducted in accordance with guidance in Field Manual 21-20 (now Department of the Army Training Circular 3-22.20), which requires at a minimum an officer in charge/NCOIC and another individual to time the event.  

		(3)  His available OERs do not show he passed the APFT until 1 July 2007.

	d.  The transaction history in IWS indicates promotion orders may have been requested in 2002, and issues with the APFT and MAW prevented issuance of promotion orders because his status was "should be under" a suspension of favorable personnel actions.  Once the appropriate documentation was submitted, he was promoted.

24.  On 1 May 2012, he responded to the advisory opinion.  He stated, in part:

	a.  He submitted the requested paperwork to Headquarters and Headquarters Company, 8th Medical Brigade, multiple times, but they failed to submit documentation of him passing the APFT and a body fat worksheet up the chain.

	b.  Prior to deploying to Germany, while in Germany, at Fort Drum, and at Fort Bragg, he passed the APFT and had acceptable body fat documented on a DA Form 5500-R.  His unit repeatedly submitted erroneous information.  He was not drilling with them after his deployment to Germany, but they continued to generate this information.  He was not informed of any flags and was not contacted by the unit for any other reason.  Phone calls and e-mails to the unit were not answered.  After his deployment to Fort Bragg, he drilled with the unit several times in order to transfer to another, more helpful unit.

	c.  His APFT dated 4 May 2003 was conducted by the 8th Medical Brigade a full 10 months prior to his deployment.  While in Germany, he requested, took, and passed the APFT.  This was submitted to his unit 6 months after his return from Germany.  He deployed to Fort Drum and again requested, took, and passed the APFT.  A DA Form 5500-R was submitted in both cases.

	d.  The issue of "slotting" was never brought up.

	e.  He did have a permanent medical profile.

	f.  Inconsistencies regarding the conduct of the APFT on 4 May 2003 are beyond the scope of his influence and are the responsibility of the 8th Medical Brigade.

	g.  While the OER he received while serving in Germany does not specify that he passed the APFT, it does state his aerobic fitness had improved dramatically.  This allowed him to not only pass, but excel at the alternative APFT, completing the 2 1/2-mile walk well ahead of his prior tests.

	h.  MG R----- J. K------, who was then commander of the 8th Medical Brigade, was aware of the situation and should support his fitness.

	i.  He attempted to get promoted while on active duty in April 2004 and January 2005, but was told the promotion action had to be submitted through his unit after he was released from active duty.  He retook the APFT each time and submitted it to the 8th Medical Brigade.

	j.  He has been and continues to be an exemplary Soldier and medical officer.  He has excellent military bearing which includes fitness and body habitus.  His service record shows his significant contributions, excellent drill attendance before his activation for service in Germany in March 2003 and after his activation from Fort Bragg in November 2007.  He has four activations, the latter two during which he voluntarily extended.  He returned from his most recent mobilization to the Middle East in April 2012 after voluntarily extending again.  This is inconsistent with the unit's submitted documentation.  He asks that his request be evaluated with the above in mind.

25.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the USAR.  Chapter 4 (Processing Selection Board Recommendations) governs the processing of promotion board selections.  It states:

	a.  A USAR TPU officer who is considered and selected by a mandatory promotion board will be promoted and transferred from the unit to the IRR.  The officer will be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date, whichever is later.  Transfer to the IRR will not occur when the officer is in an authorized position per Army Regulation 140-10 (Assignments, Attachments, Details, And Transfers) and is an Army Medical Department officer of either the Medical Corps or Dental Corps assigned to a position up to two grades below the grade to which promoted.

	b.  The effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an Individual Ready Reserve/Individual Mobilization Augmentee officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.

	c.  An officer’s promotion is automatically delayed when the officer is documented as overweight as defined in Army Regulation 600-9, has failed the APFT most recently administered, or, through his or her own fault (as determined by the first commander who is senior to the officer concerned), has not taken and passed an APFT within the period required.  

   d.  Except as provided in paragraph 4-18c, only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion.  Accordingly, except as provided herein, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s DOR and effective date of promotion.

   e.  Requests for an adjustment to date of rank and/or effective date of promotion are to be forwarded to HRC with the following information as appropriate for requests for adjustment—
   
   (1) Full explanation of the basis for the delay.

      (2) Disposition of the underlying basis.  
      
   (3) Other information as provided for in Army Regulation 600-8-2.

   f.  Paragraph 4-18c states the Chief, Office of Promotions (Reserve Components), HRC, is authorized, under certain circumstances, to adjust the date of rank and effective date of promotion for an officer whose promotion has been delayed.  If the basis for an officer’s delay of promotion due to noncompliance with height/weight standards or failure to take or failure to take and pass the APFT is not as established below, the determination regarding adjustment may only be made by the Secretary of the Army.
   
        (1) If the delay resulted from noncompliance with the height/weight standards of Army Regulation 600-9, the DOR and effective date will be the day the officer complies with the standards.

        (2) If the delay resulted from failure to pass the most recent APFT or failure to take and pass the APFT within the period required by Army Regulation 350-1 (Army Training and Leader Development) because of the fault of the officer concerned, the DOR and effective date will be the day the officer passes the APFT.

   g.  For commissioned officers (other than commissioned warrant officers), the DOR and effective date of promotion following an involuntary delay may be earlier than the date of the promotion memorandum.  However, it cannot be earlier than the approval date of the board that selected the officer.  That is unless the officer concerned obtains correction of his or her records from the Army Board for Correction of Military Records.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he was promoted to COL/O-6 in 2002 and that he be awarded back pay.


2.  The evidence of record shows the applicant was selected for promotion to COL/O-6 in 2002.  As a USAR MC officer, he could have been promoted if he was serving in a position up to two grades below the grade to which promoted and met all other requirements, including meeting height/weight standards and passing the APFT.  His assertions that he met height/weight and APFT requirements prior to the date he was actually promoted in 2007 are not adequately supported by documentary evidence.  

3.  He provides a DA Form 705 and a DA Form 5500-R, both dated 4 May 2003, indicating he was in compliance with height/weight standards and an alternate APFT event.  However, his record shows his promotion eligibility date was 9 November 2003, more than 6 months after the date shown on the forms noted above.  

4.  In September 2003, AHRC noted his promotion eligibility was suspended for the APFT, height/weight, and valid position.  Further, in October 2003, AHRC informed an RRC his promotion eligibility was suspended because he was not in a valid slot and had failed the APFT.  Considering his ongoing issues with meeting height/weight standards and passing the APFT, it is reasonable to believe that, based on AHRC's notes, he was found to be out of compliance at some point between May and September 2003.  In the absence of evidence showing otherwise, it must be presumed that AHRC's assessment of his promotion eligibility was correct.

5.  He claims the 8th Medical Brigade bears some responsibility for the delay in his promotion.  The available evidence shows he addressed the issue of his promotion with the 77th RRC IG, who instructed him to resubmit his request to his unit.  He states he did so, but "nothing happened."  It is unclear why, at this point, he did not again turn to the 77th RRC IG to request an inquiry into the unit's alleged failure to be responsive.  

6.  The preponderance of evidence in this case indicates he did not meet height/weight and APFT requirements until 2007.  When he met the standards, he was promoted.  In the absence of documentation clearly showing he met all requirements prior to his promotion in 2007, there is no basis for granting 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)                                         AR20120002582





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ABCMR Record of Proceedings (cont)                                         AR20120002582



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