BOARD DATE:	 15 October 2013 

		DOCKET NUMBER:  AR20120018445 


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.  revocation of his honorable discharge for completion of required active service;

	b.  reinstatement into the Army in the rank/grade of Command Sergeant Major (CSM)/E-9; and

	c.  evaluation by a medical board for his frostbite injuries.

2.  The applicant states he should have undergone a review by a medical board in order to determine the extent of his frostbite injuries that may have resulted in him being offered reenlistment incentives conducive with his frostbite injuries.  His honorable discharge should be vacated and he should be reinstated into the Army as a CSM, the rank he would have attained had he reenlisted.  He also notes he has been wheelchair-bound since February 2010 due to frostbite residuals.

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 on 14 January 1976 for a period of 3 years.  He completed initial entry training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  His record shows he accumulated numerous formal counseling statements for a myriad of misconduct including:

* misconduct in the barracks
* making false accusations
* failing to follow instructions
* failing to participate in the unit physical training program
* being disrespectful to a noncommissioned officer (NCO)
* assaulting another Soldier

4.  His record also reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on four occasions for:

* being disrespectful in language toward a superior NCO
* failing to go at the time prescribed to his appointed place of duty
* assaulting a superior NCO
* wrongfully using, with intent to defraud and for the procurement of rations, another Soldier's military meal pass

5.  Special Court-Martial Order Number 11, issued by Headquarters, 8th Infantry Division, shows the applicant was tried and found guilty of violating:

* Article 91, UCMJ by being disrespectful in language toward a senior NCO
* Article 128, UCMJ for assaulting an NCO

6.  The applicant's record is void of any evidence and he has not provided any evidence showing he suffered from frostbite or any other specific injury or medical condition during his period of active duty service.

7.  His DD Form 214 shows he was honorably released from active duty on
22 March 1979 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 2, upon completion of his required active service and he was transferred to U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He completed 3 years of total active service.  The applicant's rank/grade at the time of his release from active duty was specialist four (SP4)/E-4.  Additionally, his record is void of any indication that he was not eligible for immediate reenlistment at the time of his separation.

8.  Army Regulation 635-200, chapter 2, in effect at the time, pertained to discharge or release from the Active Army upon termination of enlistment, period of induction, and other period of active duty or active duty for training.  It stipulated an individual enlisted, inducted, or ordered to active duty normally would be discharged or released from active duty on the date upon which he/she completes the period for which enlisted, inducted, or ordered to active duty. 

9.  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 her or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers enter the PDES four ways:

	a.  Referred by a MOS Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  

Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct.

	b.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of Army Regulation 635-40.

	c.  Referred as the result of a Fitness for Duty Medical Examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in an MEB and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB.

	d.  Referred as a result of Department of the Army Headquarters Action.  The Commander, U.S. Army Human Resources Command, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above upon recommendation of The Surgeon General.  The U.S. Army Human Resources Command (HRC) also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the objectives of the Army's Enlisted Promotions System, that include filling authorized enlisted spaces with the best qualified Soldiers.  Further, this system provides for career progression and rank that are in line with potential and for recognition of the best qualified Soldier, which will attract and retain the highest caliber Soldier for a career in the Army.  Additionally, the system precludes promoting the Soldier who is not productive or not the best qualified, thus providing an equitable system for all Soldiers.

	a.  Promotion to sergeant (SGT)/E-5 and staff sergeant (SSG)/E-6 are executed in a semicentralized manner.  Once Soldiers are recommended for promotion consideration by their chain of command, they appear before a local selection board to determine if they are deemed worthy of being placed into a promotable status.  If so, the Soldiers' name and number of promotion points are integrated into the Headquarters, Department of the Army (HQDA) Promotion 

Standing List.  Promotion points are accrued based upon commander's recommendation, promotion board recommendation, weapons qualification scores, Army Physical Fitness Test scores, awards and decorations, civilian education, and military education.  HQDA operations will handle promotion cutoff scores and the monthly SGT/SSG promotion selection by-name list that are determined and announced monthly.  A determination is then made for each MOS as to what promotion point cutoff score would promote the desired number of Soldiers to meet the needs of the Army in a specific month.  These decisions are based primarily upon budget constraints and individual MOS requirements.

	b.  Promotion to sergeant first class (SFC)/E-7, master sergeant (MSG)/E-8, and sergeant major (SGM)/E-9 are executed in a centralized manner.  In order to be eligible for promotion consideration Soldiers must first meet announced HQDA time in grade and time in service requirements and other eligibility criteria prescribed by the Army Human Resources Command. The selection board will recommend a specified number of Soldiers by MOS from the zones of consideration who are the best qualified to meet the needs of the Army.  The total number selected for each career progression MOS is the projected number the Army needs to maintain its authorized-by-grade strength.  The following eligibility criteria must be met before the HQDA board convenes.  Soldiers must, in part:

		(1)  Have at least 6, 8, or 10 years of total active federal service for SFC, MSG, and SGM, respectively.

		(2)  Be serving on active duty in an enlisted status on convening date of the selection board.

		(3)  Have a high school diploma or GED equivalent, or an associate or higher degree.

		(4)  Not be barred from reenlistment.

		(5)  be a graduate of the appropriate NCO Education System (NCOES) course required in order to be considered for promotion to the next higher grade.

11.  Army Regulation 600-20 (Army Command Policy) provides that CSMs are SGMs/E-9 who have been formally selected by HQDA for participation in the Command Sergeants Major Program.  This regulation also states the position title of CSM designates the senior NCO of the command at battalion or higher levels.  He or she carries out policies and standards, and advises the 

commander on the performance, training, appearance, and conduct of enlisted Soldiers.  The CSM administers the unit NCO's Development Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of any evidence and he has not provided any evidence showing he suffered from frostbite or any other specific injury or medical condition during his period of active duty service.  Therefore, his contention that his condition of frostbite should have been evaluated by a medical board is without merit.

2.  Evidence shows that in spite of committing numerous disciplinary infractions, the applicant was honorably released from active duty upon completion of his required active service and he was transferred to the USAR to complete his remaining service obligation.  Additionally, his record is void of any indication that he was not eligible for immediate reenlistment at the time of his separation.  Therefore, there is no basis for revoking his 22 March 1979 separation.

3.  Regarding the applicant's promotion issue, he attained the rank/grade of SP4/E-4 at the time of his release from active duty.  Promotions are based on past performance and potential for further advancement and contributions.  Based on his overall record of service the applicant would not have been competitive for promotion at the time of his separation.

	a.  Many variables determine whether a Soldier is first recommended for consideration by and then selected for promotion by a either a semicentralized or a centralized promotion board.  These boards are very subjective and are based upon the contemporaneous needs of the Army and how the Soldier's records compare to those of their peers.  Once selected, promotion effective dates are also based upon the contemporaneous needs of the Army and in the Reserve Components are often dependent upon position vacancies in a specific unit.

	b.  In view of the foregoing, it would be purely speculative to assume that if the applicant had remained in the Army he would have been selected for promotion to any higher grade, much less CSM/E-9.  Therefore, there is no basis for granting the applicant's requested relief for reinstatement back into the Army at the rank/pay grade of CSM/E-9.

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)                                         AR20120018445



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ABCMR Record of Proceedings (cont)                                         AR20120018445



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