IN THE CASE OF:	  

		BOARD DATE:	  28 May 2013

		DOCKET NUMBER:  AR20120013294 


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 to his records to show he was promoted to specialist (SPC) and sergeant (SGT) prior to his disability separation.

2.  The applicant states, in effect, that he was never promoted to the pay grade of specialist or sergeant.  He served approximately 5 years in primary military occupational specialty (MOS) 11B (Infantryman) where the career progression is about 3 years time in service (TIS).  He contends he was called names for being on profile after enduring two neck surgeries in a training accident and suffering a spinal condition.  He was passed over and his unit violated Army Regulations 600-8-2 (Suspension of Favorable Personnel Actions (Flags) and Army Regulation 600-8-19 (Enlisted Promotions and Reductions).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Enlisted Record Brief, dated 11 February 2009
* Personal/Impact Statement
* 2 witness statements
* excerpts from Army Regulations 600-8-2 and 600-8-19
* various military awards, citations, and training certificates
* his complete Army Military Human Resource Record (AMHRR) 


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.  The applicant enlisted in the Regular Army in rank of private (PV1/E-1) on 
15 April 2004.  He was advanced to private (PV2/E-2) on 1 November 2004 and to private first class (PFC/E-3) on 15 April 2005.  There is no evidence to show the applicant was recommended for promotion to SPC/E-4 during his period of service.  He served as an infantryman.

3.  His electronic Military Personnel Office (eMILPO) record shows the applicant was flagged (under suspension of favorable action) as follows:

* Entry into Weight Control Program, 17 November 2005 through 
21 November 2008
* Army Physical Fitness Test Failure, 16 December 2005

4.  The applicant was honorably discharged in rank of PFC/E-3 on 13 April 2009, by reason of permanent disability with severance pay.  He was issued a 
DD Form 214 that shows he was credited with 4 years, 11 months, and 29 days net active service and no lost time.  His DD Form 215 shows he served in Kuwait and Iraq from 31 October 2006 through 25 January 2008.

5.  His DD 214 shows he was awarded or authorized:

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Korea Defense Service Medal
* Iraq Campaign Medal with campaign star
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)

6.  The applicant provided the following:

	a.  His personal impact statement in which he contends that while assigned to Headquarters and Headquarters Company, 4th Special Troops Battalion, 1st Cavalry Division, he did not receive his automatic promotion to SPC; however, he witnessed Soldiers who failed their weapons qualifications, failed the APFT, had disciplinary problems, were drug abusers, and Soldiers who could not perform their duties get promoted.  He was assigned to the Operations/Plans Section where he was treated harshly and had to continue to watch Soldiers get promoted ahead of him.  The applicant cites various injustices done to him and states that he even suffered reprisal from his chain of command after writing letters to his Congressman and the Association of the United States Army (AUSA).  He further contends that he was fully eligible for promotion and not flagged because he received the Army Good Conduct Medal and the Army Commendation Medal during his enlistment.  He further contends that he had a P3 Physical Profile as the result of a spinal cord injury.  This profile limited his participation in the APFT to the push-up event.  He asserts that he was eligible for promotion under the provisions of Army Regulation 600-8-19 (Enlisted Promotion and Reductions) because his physical profile resulted from combat related operations.  The applicant's medical records are not available for review.

	b.  Two witness statements that support the applicant's contention that he was treated badly, called names, and repeatedly passed over for promotion.  Both witnesses recommended the applicant for promotion based on his demonstrated leadership qualities, technical knowledge, and record of service.

	c.  Regulatory guidance related to personnel actions prohibited for flagged Soldiers.  In addition he provides an extract from Army Regulation 600-8-19, 
dated 30 April 2010, related to promoting Soldiers with combat-related injuries; however, this provision is not applicable in this case because the applicant was discharged in 2009 prior to the implementation of the policy.

	d.  Various military awards, citations, and training certificates.  Included is an Army Commendation Medal he received for meritorious service during Operation Iraqi Freedom while serving as a guard at the Mosul Detention Facility for the period 31 October 2006 to 1 January 2008.

	e.  His complete AMHRR which contains no derogatory information.

	f.  His ERB, dated 11 February 2009, which shows he was not flagged or prohibited from reenlistment at the time the document was printed.
	
7.  Army Regulation 600-8-19, in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.  It states:

	a.  Company, troop, battery, and separate detachment commanders are authorized to promote Soldiers to the grade of PV2, PFC, and SPC.

	b.  Failure to initiate a DA Form 268 (Suspension of Favorable Action) does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag.

	c.  The promotion to SPC requirement is 24 months' TIS (may be waived at 18 months TIS).  Promotions to PV2, PFC, and SPC will be made automatically by the U.S. Army Human Resources Command, Total Army Personnel database for posting to the automated personnel file and the master military pay file.

	d.  First-line leaders will counsel Soldiers who are eligible for promotion to PV2 through SSG without a waiver (fully qualified) but not recommended in writing.  Counseling will take place initially when the Soldier attains eligibility, and at least every 3 months thereafter, and include information as to why the Soldier was not recommended and what can be done to correct deficiencies or qualities that reflect a lack of promotion potential.

	e.  If a unit commander elects not to recommend a Soldier for promotion on the automatic promotion date, then a DA Form 4187 (Personnel Action) denying the promotion will be submitted not later than the 20th day of the month preceding the month of automatic promotion.  This will initiate a flag and stop the automatic promotion.

	f.  Table 2-1 shows the unit/battalion commander will select eligible Soldiers by annotating the report YES for select or NO for denial of promotion.  Prepare DA Form 4187 for those denied promotion on automatic promotion date, promoted with waiver, or promoted after the automatic promotion date.

	g.  Each month, Active Army Soldiers in all MOSs who meet the following criteria 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 as outlined below:

* 46 months TIS (to become eligible for promotion at 48 months)
* 10 months Time in Grade (TIG) (to become eligible for promotion at
12 months)
* Otherwise not ineligible in accordance with this regulation
* Not otherwise denied by the commander
* Soldier must have a minimum of 90 days remaining in service as of the month of integration onto the recommended list

8.  Army Regulation 600-8-104 (Military Personnel Information Management/Records), in effect at the time, states to file the DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) as the topmost document under the casualty report.  

9.  Army Regulation 600-8-2 prescribes that a properly imposed flag prohibits many personnel actions.  Flags for APFT failure block promotion, reenlistment, and extension only.  Flags for weight control block only attendance at full-time civil or military schooling, promotion, awards and decorations, assumption of command, and reenlistment or extension.

10.  Army Regulation 40-501 (Standards of Medical Fitness) states the inability to perform all APFT 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 (The Army Weight Control Program).

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction to his records to show he was promoted to SPC and SGT prior to his disability separation.

2.  The applicant contends, in effect, he was unjustly denied promotion.  He further contends that he was never flagged as evidence by him being awarded the Army Good Conduct Medal and the Army Commendation Medal for his deployment to Iraq.

3.  The evidence of record shows he enlisted in the Regular Army on 15 April 2004 and he was advanced to PFC on 15 April 2005.  The applicable regulation states that promotion to SPC is automatic with 24 months TIS provided the Soldier is fully eligible; therefore, he should have been promoted to SPC on
15 April 2006.  Although the applicant contends he was never flagged his eMILPO record clearly shows he was flagged for failing to meet the weight 
control standards during the period 17 November 2005 through 21 November 2008.  He contends his medical condition and physical profile limited him to only performing the push-up portion of the APFT but he does not point out that these limitations also prevented him from meeting the Army weight control standards.  Army Regulation 40-501 states Soldiers are required to maintain Army weight control standards even if they have physical profiles; therefore, he would be ineligible for promotion while enrolled in the Army Weight Control Program.

4.  His AMHRR (formerly known as the Official Military Personnel File (OMPF)) does not contain any derogatory information but the lack of derogatory evidence or a flag does not in and of itself mean that none existed at the time his commander considered the applicant for promotion.  Army Regulation 600-8-19 states that the failure to initiate a flag does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag.  The fact that he received awards during his term of service only means that he was not flagged at the time of the award, it does not mean he was never flagged.

5.  Promotion to SPC is a local command function and it must be presumed that his chain of command denied his promotion based on either his unsatisfactory performance or a flag.  This board is not an investigative body and without clear and convincing evidence of an injustice or an error such as his monthly counseling statements, and APFT cards, it must be presumed that he was properly denied promotion in accordance with the regulations in effect at the time.

6.  There is insufficient evidence to support promotion to SPC; therefore, he cannot be considered for promotion to SGT.

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)                                         AR20120013294



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ABCMR Record of Proceedings (cont)                                         AR20120013294



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