IN THE CASE OF:	  

		BOARD DATE:  6 March 2014

		DOCKET NUMBER:  AR20130012645 


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 of his records to show he was placed on the Retired List by reason of permanent disability in the rank/grade of command sergeant major (CSM)/E-9 vice master sergeant (MSG)/E-8.

2.  The applicant states the Army Grade Determination Review Board (AGDRB) rendered a decision on 8 July 2010 to retire him in the rank/grade of MSG/E-8.  As a Nonregular retiree, Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), paragraph 2-11, provides guidance regarding the highest grade satisfactorily held.  The criteria for serving in an active Reserve status are at least 185 days or 6 calendar months.  He served as a CSM/E-9 for 2 years, 6 months, and 11 days.  The medical condition that led to his ultimate disability retirement was not his fault.  The medical condition was the reason for not completing the Sergeants Major Course (SMC) and his subsequent administrative reduction to MSG/E-8.

3.  The applicant provides:

* medical document
* DA Form 2807-1 (Report of Medical History)
* DA Form 2808 (Report of Medical Examination)
* DA Form 2A (Personnel Qualification Record – Enlisted)
* permanent physical profiling memorandum
* reassignment orders and revocation of reassignment orders
* personal statement
* Medical Report and Functional Capacity
* Physical Disability Evaluation System (PDES) Process
* Summary of Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Proceedings
* Summary of MMRB Proceedings
* Referral to the PDES
* DA Form 4187 (Personnel Action), dated 5 December 2000 (appointment to CSM)
* U.S. Army Reserve Personnel Command 249-2-E (Chronological Statement of Retirement Points), dated 22 June 2001
* DA Forms 2166-7 (Noncommissioned Officer Evaluation Report) for the periods November 2000-October 2001 and November 2001-May 2002
* DA Form 3349 (Physical Profile), dated 14 September 2002
* DA Form 3349, dated 10 December 2002
* DA Form 1059 (Service School Academic Evaluation Report), dated 14 April 2003
* Headquarters, 89th Regional Support Command, Orders 03-132-00040, dated 12 May 2003 (administrative reduction orders)
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 March 2008
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 5 May 2010 (approved 24 May 2010)
* AGDRB memorandum, dated 8 July 2010, subject:  Disability Grade Determination (Title 10, U.S. Code, Section 1372) (Applicant)
* U.S. Army Human Resources Command (HRC) memorandum, dated 13 July 2010, subject:  Placement on the Temporary Disability Retired List (TDRL)
* U.S. Army Physical Disability Agency (USAPDA) Orders 194-12, dated 13 July 2010 (TDRL orders)
* email from HRC, dated 30 October 2012, denying his request for retirement in the rank of sergeant major (SGM)
* DA Form 199, dated 10 June 2013 (approved 20 June 2013) (TDRL PEB)
* statement of support from his former commander, dated 27 June 2013
* extract of Army Regulation 135-180
* extract of Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction)
* extract of Army Regulation 600-60 (Physical Performance Evaluation System)
* extract of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
* extract of Army Reserve Non-regular Retirement Information Guide, dated 12 February 2009
* USAPDA Commander's Overview of the PDES – Reserve Components
* Department of the Army Office of the Deputy Chief of Staff, G-1, MOS/Medical Retention Board (MMRB) Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in July 1959.

2.  He enlisted in the Regular Army on 12 July 1977 and held military occupational specialty 76P (Stock Control Specialist).  He was honorably released from active duty on 11 July 1980 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  He reenlisted in the USAR on 27 April 1983.  He served through multiple reenlistments in a variety of assignments and he was promoted to MSG/E-8 on 9 August 1993.

4.  On 19 January 2000, the U.S. Army Reserve Personnel Command (currently known as HRC) issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  On 5 December 2000, the Director, Enlisted Personnel Management Directorate, HRC, St. Louis, MO, issued a DA Form 4187 appointing him to the rank of CSM with a date of rank (DOR) of 30 October 2000 and an effective date of 1 November 2000.  The DA Form 4187 shows:

* Authority:  Army Regulation 135-205 (Enlisted Personnel Management), paragraph 6-17, and Calendar Year 2000 USAR CSM Promotion Selection Board results
* Additional Instructions:  "This appointment is contingent upon successful completion of the Sergeant [sic] Major Academy Course within two years from the date of enrollment in the Course"

6.  Between November 2000 and May 2002, he served as the Battalion CSM, 530th Military Police Battalion, Omaha, NE.

7.  On 27 February 2003, the Commandant, U.S. Army Sergeants Major Academy (USASMA) notified the applicant by memorandum that he was dismissed from the Nonresident SMC for failure to maintain satisfactory academic progress in accordance with Army Regulation 351-1 (Army Training and Leader Development), paragraph 5-23.  Soldiers dismissed from the SMC for any reason may be removed from the standing promotion list, have their conditional promotion status revoked, be barred from reenlistment, receive nonjudicial punishment, or be reclassified by the appropriate authority.  The USASMA Commandant provided a 30-day window for the applicant to appeal this decision to the Commanding General, U.S. Army Air Defense Center, Fort Bliss, TX.

8.  There is no indication the applicant appealed his dismissal from USASMA and, as a result, the USASMA Class Facilitator (Preparing Officer) and USASMA Commandant (Reviewing Officer) issued a DA Form 1059 on 14 April 2003 indicating the applicant was dismissed from the Nonresident SMC Class Number 28 and that he failed to achieve course standards.  Item 18 (Comments) states, "This dismissal is based on his failure to maintain satisfactory academic progress.  No determination is made regarding whether this course failure reflects on CSM [Applicant's] character, behavior, or lack of aptitude in certain areas."

9.  Headquarters, 89th Regional Support Command, Wichita, KS, 
Orders 03-132-00040, dated 12 May 2003, administratively reduced the applicant to MSG/E-8 effective 12 May 2003 and with a DOR of 9 August 1993.  The authority is listed as Army Regulation 140-158, paragraph 7-12(d-g).

10.  On 20 April 2010, a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) was completed indicating the applicant suffered from a disease and he had a history of organophosphate exposure while deployed in support of Operations Desert Shield/Desert Storm with the 172nd Transportation Company.  His medical diagnosis shows that of a Gulf War veteran with nonischemic cardiomyopathy and his disease was in the line of duty and combat related.

11.  On 5 May 2010, a PEB convened and found the applicant was physically unfit to perform the duties of his grade and military specialty by reason of dilated nonischemic cardiomyopathy secondary to organophosphate poisoning sustained in the Gulf War.  His initial symptoms appeared in 1997.  A treadmill stress test was conducted in 2009 and disclosed a maximum aerobic capacity of 2.5 metabolic equivalents manifested by marked limitation of physical activity.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and recommended a combined physical disability rating of 100 percent and placement on the TDRL with reexamination in 2011.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.

12.  On 8 June 2010, the USAPDA requested a review of the applicant's records to determine the highest grade satisfactorily served for the purpose of computation of disability retirement or separation pay.

13.  On 8 July 2010, the AGDRB reviewed his case.  After a thorough review of his personnel records and the PEB Proceedings, the AGDRB determined the applicant was conditionally promoted to CSM in November 2000 and reduced to MSG on 12 May 2003 based on his failure to complete the SMC.  The AGDRB determined the highest grade in which he satisfactorily served for the purpose of computation of disability retirement or separation pay is his current rank/grade of MSG/E-8.

14.  USAPDA Orders 194-12, dated 13 July 2010, released him from active duty and placed him on the TDRL in the rank/grade of MSG/E-8 effective 17 August 2010 by reason of temporary disability.

15.  On 17 October 2012, he requested a review of his records by the HRC CSM Branch to determine the highest grade he satisfactorily held.  He provided a similar argument as provided in this application and submitted similar supporting documents.

16.  On 30 October 2012, the HRC CSM Branch completed a review of his packet/records and determined that he was administratively reduced to MSG/E-8 since he was conditionally promoted to CSM but did not complete the NCO Education System (NCOES) requirements.  His reduction was in accordance with Army Regulation 600-8-19, paragraph 1-27.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list.

17.  On 13 June 2010, a TDRL PEB convened and found the applicant's condition had not improved to the extent that he was found fit for duty.  However, his condition was considered sufficiently stable for final adjudication.  He was rated as 100-percent disabled under the VASRD code applicable to his medical condition (cardiomyopathy).  Accordingly, the PEB recommended his permanent retirement.  He concurred.

18.  USAPDA Orders D177-10, dated 26 June 2013, removed him from the TDRL effective 26 June 2013 and permanent retired him in the rank/grade of MSG/E-8 effective 27 June 2013 with a 100-percent disability rating.

19.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 1-20 states Soldiers who are pending referral to an MMRB under Army Regulation 600-60, or referral to a medical evaluation board (MEB) under Army Regulation 40-400 (Patient Administration) or a PEB under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.  Soldiers who have been conditionally promoted but are unable to meet the condition of their promotion solely because of a medical condition that results in a finding of unfit by the PDES will not be subject to administrative reduction if otherwise qualified to retain promotable status.

20.  Army Regulation 135-180 implements statutory authorities governing retired pay to Soldiers and former Reserve Component Soldiers.  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which an enlisted Soldier held while serving on active duty or in an active Reserve status for at least 185 days or 6 calendar months.  Service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the Soldier's retirement grade if, during the mandatory review of the Soldier's records by the HRC Retired Activities Directorate, it is determined that any of the following factors exist:  (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, UCMJ, or court-martial; or (b) there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army from 12 July 1977 to 11 July 1980 and in the USAR from 27 April 1983 to 17 August 2010 when he was placed on the TDRL by reason of temporary disability.  He was promoted to MSG/E-8 on 9 August 1993.

2.  He was selected for promotion to SGM and appointment to CSM by authority of Army Regulation 135-205, paragraph 6-17, and the Calendar Year 2000 USAR CSM Promotion Selection Board results.  He was appointed to CSM effective 1 November 2000 and with a DOR of 30 October 2000.  The promotion instrument stipulated that this appointment was contingent upon successful completion of the SMC within 2 years of enrollment in the course.

3.  The evidence of record further shows the USASMA Commandant notified the applicant by memorandum, dated 27 February 2003, that he would be dismissed from the Nonresident SMC for failure to maintain satisfactory academic progress in accordance with Army Regulation 351-1, paragraph 5-23, and that Soldiers dismissed from the course for any reason may have their conditional promotion status revoked.  The USASMA Commandant provided him a 30-day window to appeal this decision.

4.  There is no evidence the applicant appealed his dismissal from USASMA, and he was issued a DA Form 1059 on 14 April 2003 stating he was dismissed from the Non-resident SMC, Class Number 28, and he failed to achieve course standards.  His dismissal was not based on a medical reason.  It was based on his failure to maintain satisfactory academic progress.

5.  Subsequent to the dismissal, he continued to train with the USAR until a line-of-duty investigation was completed and his medical condition warranted his entry into the PDES in 2010.  He was considered by an MEB that referred him to a PEB.  The PEB that convened in May 2010 determined he was physically unfit. 
The PEB rated his condition as 100-percent disabling and recommended his placement on the TDRL.

6.  Prior to placing him on the TDRL, the USAPDA referred his case to the AGDRB.  On 8 July 2010 after a thorough review of his personnel records and the PEB Proceedings, the AGDRB determined the applicant was conditionally promoted to CSM in November 2000 and reduced to MSG on 12 May 2003 based on his failure to complete the SMC.  The AGDRB determined the highest grade in which he satisfactorily served for the purpose of computation of disability retirement or separation pay was his current rank/grade of MSG/E-8.  As such, he was placed on the TDRL in the rank/grade of MSG/E-8.

7.  While on the TDRL, he also petitioned HRC for a review of his records.  The HRC CSM Branch determined he had not completed the required NCOES and, as such, he was administratively reduced to MSG/E-8.  This reduction is in accordance with paragraph 1-27 of Army Regulation 600-8-19.  He was ultimately removed from the TDRL on 26 June 2013 and permanently retired by reason of disability in the rank/grade of MSG/E-8 at a 100-percent disability rate.

8.  The applicant was given the opportunity to appeal his dismissal in 2003.  For unknown reasons, he did not do so.  The USASMA Commandant's memorandum and the resultant DA Form 1059 speak of him failing to maintain satisfactory academic progress.  Given that he had been conditionally promoted and/or appointed to CSM in November 2000, it is reasonable to presume that if there had been a medical condition that prevented him from completing the required NCOES, he would have appealed his dismissal.

9.  Furthermore, he continued to train with the USAR from the date of his dismissal from the SMC and subsequent administrative reduction in 2003 until his retirement in August 2010, accruing 50 or more retirement points in each retirement year.  Again, for unknown reasons, he neither sought to reenroll in and complete the SMC nor request an NCOES waiver through the appropriate authority.

10.  His case had been adjudicated by the AGDRB and HRC.  Both agencies reached the conclusion that his administrative reduction was due to failing to make satisfactory progress.  Since he had been conditionally promoted and/or appointed to CSM in November 2000, he was properly administratively reduced.  Although this Board's review is independent from that of the AGDRB and/or HRC, the applicant provides no new evidence to lead to a different conclusion than that already reached by the aforementioned two agencies.

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 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)                                         AR20130012645



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ABCMR Record of Proceedings (cont)                                         AR20130012645



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