IN THE CASE OF:	  

		BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120018187 


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:

	a.  correction of his DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the period September 1994 through June 1999 to show he passed the Army Physical Fitness Test (APFT);

	b.  an explanation as to why he was not medically retired in 1994 if he was not promotable; and

	c.  reevaluation of his promotion status.

2.  The applicant states he was not promoted from 1994 through 2003 to sergeant first class (SFC) or possibly master sergeant (MSG) due to administrative errors.  After having open heart surgery, his unit personnel manager incorrectly entered "Profile" in Part IV, block c (Physical Fitness & Military Bearing) of his DA Forms 2166-7 on five reports from 1994 through 1999.  However, he had been placed in an alternate physical fitness program and passed his APFT each time.  He further claims that throughout 10 years of being passed over for promotion he was told he was not in the zone of consideration despite having the time in service and grade.

3.  The applicant provides:

* a self-authored statement


* eight DA Forms 2166-7
* a memorandum from Captain (CPT) RCB, his former company commander, dated 28 September 2001
* a memorandum from Sergeant First Class (SFC) RWB, his battalion support operations noncommissioned officer in charge (NCOIC), dated
21 September 2001
* a memorandum from Master Sergeant (MSG) JMM, his company operations sergeant, dated 27 September 2001

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.  Having prior Regular Army (RA) service, the applicant enlisted in the U.S. Army Reserve (USAR) on 23 October 1984.  On 30 September 1985, he was ordered to active duty in an Active Guard Reserve (AGR) status in the rank/grade of specialist (SPC)/E-4.

3.  Evidence shows the applicant was promoted to sergeant (SGT)/E-5 on
6 September 1985.

4.  Orders 004-45, issued by the U.S. Total Army Personnel Command, St. Louis, MO, dated 10 January 1989, promoted the applicant to staff sergeant (SSG)/E-6, with an effective date of 1 February 1989, and a date of rank of
21 January 1989.

5.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 September 1995, that shows he was referred to a hospital for unstable angina - R/O MI (rule-out myocardial infarction).


6.  His records contain a DA Form 3349 (Physical Profile) that shows he received a permanent profile for coronary artery disease on 2 March 1998.  The profile indicated he could perform the sit-up and walk events as his APFT.

7.  Information contained in the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), shows the date of his last physical as 25 July 2000.  He was found to have no limitations in his military physical profile. 

8.  The applicant provides and his record contains DA Forms 2166-7 for the following periods below with his APFT status.  In each instance the applicant verified that his height, weight, and APFT entries were correct and that he was aware of the appeals process contained in Army Regulation 623-205 (NCOER Reporting System) in effect at the time by placing his signature in the appropriate block:

* September 1994 through July 1995, Profile 9406
* September 1995 through August 1996, Profile 9406
* August 1996 through July 1997, Profile 9706
* August 1997 through July 1998, Profile 9706
* July 1998 through June 1999, Profile 9706

These reports uniformly show the applicant was rated "Among the Best" in potential by his rater.

9.  The applicant's record contains a DA Form 2166-7 for the period August 2000 through July 2001 that shows he was rated "Among the Best."  He also received the highest marks for overall performance and potential for promotion by his rater and senior rater, respectively. 

10.  On 30 November 2002, he was retired by reason of sufficient service for retirement.  He completed 23 years, 1 month, and 16 days of creditable active service.

11.  The applicant provides three memoranda that speak to the applicant having successfully completed alternate APFTs while on a valid profile.  Therefore his evaluation reports were administratively incorrect and should have stated he passed the APFT as opposed to showing that he was on profile.

12.  Department of the Army (DA) Pamphlet 623-205 states APFT refers to both the APFT for NCOs without profiles consisting of pushups, situps, and the 2-mile 


run; and the alternate APFT as prescribed by health care personnel for NCOs with permanent profiles who have been cleared to take the alternate APFT.  If no APFT is taken due to profile, the entry will be: "PROFILE" and the year and month the profile was awarded.  These entries will reflect the NCO's status on the date of the most recent record APFT administered by the unit within the
12-month period prior to the last rated day of supervision.  These entries will reflect the NCO’s status on the date of the most recent record APFT administered by the unit within the 12-month period prior to the last rated day of supervision.  Sample entries are "PASS 0105," "FAIL 0105," or "PROFILE 9903." NCOs who have a permanent profile and are cleared to take the alternate PT test, do not need the statement "profile does, or does not hinder duty performance."

13.  Army Regulation 623-205, paragraph 6-10 states the burden of proof in an NCOER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition that is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the enlisted promotions function of the military personnel system.  Eligibility and selection criteria for promotion to pay grade E-7 includes requirements such as serving in the next lower rank for a specified time and meeting minimum time in service requirements, in addition to other requirements.  Paragraph 4-1 of this regulation states that selections by DA boards will be based on impartial consideration of all eligible Soldiers in the announced zone.  It further states that promotion boards will select a specified number of Soldiers by 


military occupational specialty (MOS) from zones of consideration who are the best qualified to meet the needs of the Army.  Paragraph 4-3 states that Soldiers who are not selected for promotion by DA boards will not be provided specific reasons for nonselection.  Board members will not record their reasons nor give any reasons for selection or nonselection.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request has been carefully examined and found to be without merit.

2.  With regard to amending his NCOERs for the period September 1994 through June 1999 to show he passed the APFT, in each instance the applicant verified that his height, weight, and APFT entries of "Profile" were correct and that he was aware of the appeals process contained in Army Regulation 623-205 by placing his signature in the appropriate block.  There is no evidence he questioned the recurring APFT entries during these periods.  There is also no evidence of record and he did not provide any evidence that shows he submitted an appeal of any of these NCOERs in question.  Therefore, there is an insufficient evidentiary basis for granting this portion of his request.

3.  With regard to why he was not medically retired in 1994 if he was not promotable, the applicant has provided no evidence nor do his records contain any evidence that shows he was not eligible for promotion consideration.

4.  Nevertheless, the PDES provides that the mere presence of impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his/her office, grade, rank, or rating.  While it is apparent the applicant underwent treatment for unstable angina, his NCOERs continually reflected his successful performance of assigned duties after receiving medical treatment.

5.  Further, there is insufficient medical evidence to overcome the regulatory presumption that he was fit given his continued performance of duty.  The evidence fails to support a conclusion that he had a condition that did not meet medical retention standards at the time.

6.  Regarding promotion reevaluation, promotion boards are instructed to select the best qualified Soldiers for promotion to meet the needs of the Army based on impartial consideration of all eligible Soldiers.  Promotion consideration is to some degree subjective and the specific reasons for selection or nonselection is not recorded.  Therefore, the reason a Soldier is not selected for promotion is not a matter of record.

7.  While it is understandable that the applicant desires to have his records corrected to show he was selected for promotion to SFC or possibly MSG by one of the boards convening from 1994 to 1999, he has not shown that an error or injustice contributed to his nonselection.  As such, there is an insufficient evidentiary basis for granting this portion of his requested relief.

8.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20120018187



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ABCMR Record of Proceedings (cont)                                         AR20120018187



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