IN THE CASE OF:  

		BOARD DATE:  17 October 2013

		DOCKET NUMBER:  AR20130003269


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 promotion to the rank/grade of major (MAJ)/O-4, which would enable him to continue his military career in the U.S. Army Reserve (USAR).  In the alternative, the applicant requests he be placed on the Retired List, by reason of physical disability, in the rank/grade of captain (CPT)/O-3. 

2.  The applicant states: 

* his military career was wrongfully ended due to administrative errors resulting in him being medically "flagged" for 10 years
* his 10 year medical flag prevented him from obtaining the minimum qualifications to be promoted to MAJ
* he incurred injuries in the line of duty in November 2000 while a reservist serving on active duty orders
* he was placed on a temporary medical profile on 18 June 2002 with no further action taken by his command
* in December 2005, more than three years later, he was placed on a permanent medical profile and referred to a non-duty related physical evaluation board (PEB)
* he advised that referral to a non-duty related PEB was improper and he affirmatively contacted his command to remind his command that the subject medical injuries were incurred in line of duty
* in 2006, he requested orders for his officer advanced course so he could be educationally qualified for consideration of promotion to MAJ (without the completion of the advanced course he would not even be considered for promotion)
* his command advised that he had a pending medical issue and that his attendance at the officer advanced course would not be approved
* 2 years later, and after his request to lift his medical flag, his command advised it would refer him to a duty-related PEB in 2008
* without explanation, the initiation of that process was delayed for at least  2 more years
* he was ultimately processed by a duty-related PEB around late 2010
* in 2011, while the results of his PEB were pending, the U.S. Army discharged him for non-selection on 2 occasions, but the order had to be rescinded as he still had an unresolved medical flag
* in late 2011, the PEB ultimately found him fit for duty
* he was soon thereafter discharged for non-selection for promotion on       2 occasions
* the errors committed by the U.S. Army here effectively ended his military career

3.  The applicant provides:

* an extract (page 3 of 3) of DD Form 2808 (Report of Medical Examination), dated 10 June 2002
* Standard Form (SF) 507 (Medical Record), dated 13 December 2005
* an extract (page 1) of a memorandum from the U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 2 February 2006, subject: Notification of Medical Disqualification
* an extract (page 1) of a memorandum from HRC, dated 1 March 2006, subject: Non-Duty Related Physical Evaluation Board (NDR-PEB) Fitness Determination
* a letter from the applicant to HRC, dated 9 April 2006, subject: Request for PEB of [Applicant], XXX-XX-5947
* an email message from his career manager, dated 4 December 2006
* a memorandum from HRC, dated 5 June 2007, subject: Notification of Promotion Status
* a memorandum from the applicant to the PEB Liaison Officer (PEBLO), dated 12 June 2007, subject: Request for Medical Evaluation Board (MEB)/PEB
* a memorandum from the U.S. Army PEB, Fort Sam Houston, TX, dated 14 June 2007, subject: Request for MEB
* an email message from the HRC Surgeon's Office, dated 27 August 2008


CONSIDERATION OF EVIDENCE:
1.  On 19 August 1997, after prior enlisted service in the Air National Guard, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank of first lieutenant (1LT), in the Judge Advocate General’s (JAG) corps.  

2.  He was assigned to the 22nd JAG Detachment, a troop program unit (TPU) under the authority of the 90th Regional Support Command (RSC) of the USAR.

3.  On 4 September 1998, he completed the Judge Advocate Officer Basic Course at the U.S. Army JAG School in Charlottesville, VA.  

4.  Orders 00-276-017, issued by Headquarters, 90th RSC, North Little Rock, AR, on 2 October 2000, released him from the 22nd JAG Detachment and assigned him to the USAR Control Group (Reinforcement) (otherwise known as the Individual Ready Reserve (IRR)), effective 2 October 2000.

5.  Orders 002677, issued by Headquarters, 90th RSC on 11 October 2000, ordered him to active duty for a period of 6 days, effective 12 November 2000.

6.  On 13 November 2000, he was involved in a motor vehicle accident.  It appears he suffered injuries from this accident; however, he did not seek immediate medical treatment for his injuries and a DA Form 2173 (Statement of Medical Examination and Duty Status) was not completed until a later date.

7.  Orders C-11-032543, issued by the USAR Personnel Command (AR-PERSCOM), St. Louis, MO, on 17 November 2000, released him from the IRR and reassigned him to the 22nd JAG Detachment, effective 17 November 2000.   

8.  Orders 01-262-011, issued by Headquarters, 90th RSC on 19 September 2001, released him from the 22nd JAG Detachment and reassigned him to the IRR, effective 5 September 2001.

9.  On 24 January 2002, he underwent a physical examination, as required for continued service in the USAR.   Although he received his physical examination in January 2002, it appears his DD Form 2808 was not completed until 10 June 2002.

10.  On 20 March 2002, AR-PERSCOM notified him by letter that his security clearance was out of date and required a periodic reinvestigation or his clearance would be downgraded.

11.  On 10 June 2002, his DD Form 2808 was completed.  This form shows he was issued a temporary physical profile, with a "2" in the "U" (Upper) and "E" (Eyes) factors of his PULHES, the 6 factors comprising the Military Physical Profile Serial System. 

12.  On 30 September 2002, his clearance was administratively downgraded.

13.  On 24 October 2002, AR-PERSCOM provided him instructions for completing an electronic personal security questionnaire (EPSQ) for a security clearance periodic reinvestigation.  

14.  On 14 January 2003, AR-PERSCOM's Security Office administratively downgraded his security clearance to "none" because his investigation date was outside the 15-year window and a periodic reinvestigation had not been initiated.

15.  On 24 July 2003, a DA Form 2173 was completed for the injuries he sustained in the motor vehicle accident on 13 November 2000.  This form was completed by a medical doctor; however, Section II was not completed by his unit commander.

16.  On or about 9 March 2004, his updated security clearance was granted.

17.  On 8 May 2003, he was promoted to the rank of CPT with an effective date of 17 March 2003. 

18.  On 4 May 2004, he received a second promotion order to CPT, based on his selection for promotion by an officer Special Selection Board (SSB) that adjourned on 31 July 2003.  Based on his selection before the SSB, his date of rank (DOR) and effective date of promotion were back-dated to 18 August 2001, the date on which he acquired 4 years of commissioned service.

19.  On 7 October 2004, a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) was completed as part of the investigation into the circumstances surrounding his motor vehicle accident on 13 November 2000.  In this report, the investigating officer concluded he sustained his injuries in the line of duty.  On 25 October 2004, the appointing authority and the Commander, U.S. Army Field Artillery Center and Fort Sill, acting as the final approval authority, approved the findings of "in line of duty."

20.  Orders C-04-506637, issued by HRC on 14 April 2005, reassigned him from the IRR to the USAR Control Group (Individual Mobilization Augmentee (IMA)), effective 14 April 2005.

21.  On 13 December 2005, he was issued a permanent physical profile, with a "3" in the "U" and "L" (Lower) factors and a "2" in the "E" factor of his PULHES.  This physical profile rendered him unqualified for retention for further service, pending the outcome of an MEB and possible PEB.

22.  On 2 February 2006, HRC notified him by memorandum that he was medically disqualified for retention in the USAR.  This memorandum provided him 3 options:  

* he could elect transfer to the Retired Reserve if otherwise eligible for retirement based on total qualifying years of service
* he could elect to be discharged from the USAR
* he could elect to have his case considered by an NDR-PEB

23.  On 10 February 2006, he responded to the HRC notification memorandum, indicating he desired to have his case considered by a PEB, based on injuries he incurred in the line of duty.

24.  On 1 March 2006, HRC notified him by memorandum that they had considered his request for an NDR-PEB and would forward his records to the appropriate PEB for a fitness determination.

25.  On 9 April 2006, he responded to HRC by informing them that an NDR-PEB was an improper board to adjudicate his medical qualification for retention, since the matter involved injuries previously determined to have been incurred in the line of duty.

26.  On 5 September 2006, he contacted his career manager at HRC and requested enrollment in the Judge Advocate Officer Advanced Course (JAOAC).  A quota was secured in the Army Training Requirements and Resources System (ATRRS).

27.  On 4 December 2006, he received an email message from his career manager, who advised him he could not cut orders for him, presumably to attend the JAOAC, until his medical issues were resolved.

28.  On 5 January 2007, his ATRRS reservation for the JAOAC was cancelled.

29.  He was considered by the Fiscal Year (FY) 2007 Department of the Army – Army Reserve Judge Advocate Mandatory Selection Board, which convened during the period 11 through 14 April 2007, for promotion to the rank of major (MAJ).  The board did not select him for promotion to MAJ. 

30.  On 12 June 2007, he sent a memorandum to an unspecified PEBLO, subject: Request for MEB/PEB, wherein he requested assistance with the initiation of an MEB/PEB since no previous action had been taken since his permanent profile was issued in December 2005.

31.  On 14 June 2007, the U.S. Army Physical Disability Agency (USAPDA) responded to his request for assistance, informing him they were forwarding his request for an MEB to the HRC Command Surgeon's Office for further processing.

32.  On 27 August 2008, an official from the HRC Command Surgeon's Office emailed him requesting further information in support of his request for an MEB.  It is unclear what further actions this individual took in support of his request.

33.  It is unclear whether he was considered by the FY2008 Department of the Army – Army Reserve Judge Advocate Mandatory Selection Board; however, his record does indicate he was considered but not selected for promotion by the FY2009 board.  Since he was twice non-selected for promotion to MAJ, he was scheduled to be discharged from the Army Reserve.

34.  Orders D-03-005204, issued by HRC on 18 March 2010, discharged him from the USAR effective 1 April 2010; however, since his medical status was still unresolved, these orders were later revoked.

35.  On or about 6 January 2011, a PEB convened at Fort Sam Houston, TX, to consider his case and found him fit for duty.  

36.  On 24 February 2011, he indicated his non-concurrence with the board's findings and recommendation and his election to appeal the board results.  

37.  On 25 April 2011, the USAPDA approved and affirmed the board's findings and recommendation.

38.  Orders D-01-200912, issued by HRC on 23 January 2012, discharged him from the USAR effective 19 January 2012.

39.  On 15 April 2013, in the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Management, HRC.  By rendering the following opinion, the advisory official recommended the Board grant the applicant partial relief:

   a. The applicant contends he should be afforded an additional promotion opportunity to MAJ, based on the fact he was disadvantaged by being medically flagged as an administrative error, which precluded him from completing the minimum Military Education (MILED) necessary for favorable consideration.  This contention is not without merit.

b.  It is true the applicant twice failed to be selected for promotion to MAJ, based upon his failure to complete the mandatory MILED requirements set forth in Army Regulation 135-155 (Army National Guard and USAR – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).

c. There is evidence that he was prohibited from participating in distance learning and/or resident MILED courses based on his medical status.

   d. If he had been MILED qualified, there is no guarantee he would have been selected for promotion to MAJ; however, there is definitive proof that officers deemed not educationally qualified are automatically non-selected for Reserve Component promotions.  

   e. Since the board was a "best qualified" board, those officers deemed "fully qualified" are ranked in an order of merit based on their board scores and recommended for promotion up to the respective select objective (i.e., total number of authorized promotions).  Granting an SSB with a MILED waiver is the only grounds to determine if CPT [Applicant's] overall record, when compared with the records of his contemporaries in the zone of consideration, would reflect as high a potential as those selected for promotion.

40.  On 16 April 2013, the applicant was provided a copy of the advisory opinion, for his review and to provide an opportunity for comment and/or rebuttal.  He did not respond.

41.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve Component officers.  It specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-

completion of required military schooling.  It also specifies that completion of the OAC not later than the day before the selection board convening date is required for promotion qualification to MAJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests promotion to the rank of MAJ, which would enable him to continue his military career in the USAR.  In the alternative, he requests he be placed on the Retired List, by reason of physical disability, in the rank of CPT. 

2.  The evidence of record shows he was determined by competent medical authorities to be non-qualified for further military service in December 2005, unless cleared for further service by an MEB or PEB.  

3.  The evidence further shows his records were not viewed by a PEB until January 2011, over 5 years later, at which time he was found fit for duty.  Unfortunately, while he was awaiting clearance by the PEB, he was ineligible to complete his MILED requirement, the OAC.  Had he been able to attend and complete the OAC, he may have been selected for promotion to MAJ.  

4.  Therefore, the delay in his PEB processing constitutes a material error, which can only be overcome by the granting of a waiver of MILED and promotion consideration to MAJ by an SSB under the 2007 criteria and, if necessary,    later-year criteria. 

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

6.  With respect to his request for retirement by reason of physical disability in the rank of CPT, the PEB found him fit for duty; therefore, there is no basis for granting his request for retirement by reason of physical disability.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

   a.  A waiver for the educational requirement for promotion to MAJ, for the individual concerned is approved.

   b.  That, following administrative implementation of the foregoing, his records be submitted to a duly-constituted SSB for promotion reconsideration under 2007 and, if necessary, later-year criteria.

   c.  That, if selected, his records be further corrected by showing he met all the eligibility criteria for promotion and was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

d.  That if selected for promotion, his records be further corrected to show:

		(1)  his discharge, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge to the date of his return to the active Reserve status;  

		(2)  that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

		(3)  that all documents related to his now-voided non-selection for promotion, and his discharge be expunged from his official military records.

e.  that if not selected, the applicant be so notified.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 

much of the application that pertains to his request for immediate promotion to MAJ or retirement by reason of physical disability in the rank of CPT.



      _______ _  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)                                         AR20110023381



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