IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130014793 


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 her records to show she was not reduced from sergeant (SGT)/E-5 to corporal (CPL)/E-4. 

2.  The applicant states 

	a.  She believes the reduction in rank is unjust.  In July 2010, she passed out while conducting physical training and was transported to Landstuhl Regional Medical Center.  After numerous appointments and tests, the determination was made that her gallbladder needed to be removed.  During the gallbladder surgery, large masses were found on her liver.  In January 2011, she was sent to Walter Reed Army Medical Center (WRAMC) for surgery to have a large portion of her liver removed.  After the second surgery, she received numerous temporary no physical activity profiles covering the period February 2011 through August 2012.  Therefore, she was physically unable to take an Army Physical Fitness Test (APFT).  When she returned from WRAMC in April 2011, she spoke with her company command team regarding the actions she needed to take in order to retain her promotable status being that she was physically unable to take an APFT.  Her company commander was informed, by the Brigade S-1, that he needed to write a memorandum explaining the circumstances of her situation which was forwarded to the U.S. Army Human Resources Command (HRC).

	b.  According to the Brigade S-1, the response from HRC was that her records were documented and her APFT information would be updated with the date and score from her previous APFT.  In September 2011, she made the cutoff score for promotion to SGT.  In November 2011, the Battalion S-1 informed her that her promotion was being audited and she needed to provide a copy of her promotion packet.  She provided the Battalion S1 with a copy of her promotion packet and never received a disposition of the audit.  In January 2012, the Battalion S-1 requested a second copy of her promotion packet for another audit by the Brigade S-1.  She was further informed that she had 24 hours to provide her promotion packet or her rank would be taken.  She provided the Brigade S-1 a copy of her promotion packet.  A few days later, the Battalion S-1 was informed by the Brigade S-1 that her promotion was justified.  However, in August 2012, an Inspector General (IG) inspection was initiated regarding her promotion to SGT. 

	c.  The Brigade S-1 received an email from Assistant IG Sergeant First Class (SFC) T--y R---s, stating "It is believed that [Applicant], of the 230th Military Police (MP) Company, obtained promotion to SGT erroneously based off an inaccurate APFT date (201104) input into her Enlisted Record Brief (ERB).  It is believed that Chief Warrant Officer Two (CW2) C----i R-----ph updated her scores in EMILPO on 27 April 2011 based on a memorandum signed by the company commander requesting the service member keep the promotable status.  At the time, the Soldier was allegedly on profile due to cancer and could not take an APFT.  Although the command had good intentions on the actions taken, current regulatory guidance indicates that this promotion was and is currently still erroneous." 

	d.  She strongly feels that the IG’s memo and investigation were initiated with a pre-existing bias.  She did not "allegedly" have cancer.  She was diagnosed by a licensed physician with having gallbladder disease and hepatic masses on her liver and she has included documented proof of the medical circumstances concerned with her condition and the surgeries and recovery involved.  The outcome of the IG inspection was that her promotion was erroneous and in September 2012, her promotion to SGT was revoked and she was restored to the rank of specialist (SPC)/E-4.  Upon arrival at the Brigade S-1, she was laterally appointed to the rank of CPL.  She fully understands the regulatory guidance pertaining to the Army’s promotion system, physical fitness tests, and temporary profiles.  She would have never lost her rank of SGT if her illnesses were combat related, but her doctor explained to her that the determination could not be made as to where she got sick; it could be from combat or it could not be and she should not be punished for being sick.  All her medical conditions were out of her control.  Each time she looks in the mirror or she is addressed as a CPL, she feels like she is being punished for circumstances that were not her fault.  She worked extremely hard to become a SGT and proudly fulfilled her duties as a noncommissioned officer.  As difficult as this process has been for her, she continuously strives to do her best.

3.  The applicant provides:

* Multiple DA Forms 3349 (Physical Profile)
* DA Form 705 (APFT Scorecard)
* 15th Regimental Signal Brigade Promotion Board memorandum
* DA Form 3357 (Board Recommendation)
* DA Forms 3356 (Board Member Appraisal Worksheet)
* DA Form 5790-R (Record Firing Scorecard)
* Promotion Board Proceedings for Promotion to SGT/Staff Sergeant (SSG)
* DA Form 3355 (Promotion Point Worksheet)
* DA Form 5501 (Body fat Content Worksheet)
* Promotion Qualification Scores for Promotion During September 2011
* Statement of Competent Medical Authority for Outpatient Travel
* Retaining of Promotable Status memorandum
* Promotion Orders 237-07
* Certificate of promotion
* Email audit
* Erroneous promotion memorandum
* Congressional correspondence
* Notification of Indebtedness
* Assignment orders
* DA Form 4187 (Personnel Action) revoking her promotion
* Remission of financial debt memorandum
* Defacto status for applicant's erroneous promotion
* HRC's response to Congressional correspondence
* DA Form 2823 (Sworn Statement)
* Legal review of defacto status memorandum
* Multiple character reference letters
* Current APFT scorecard and Body Fat Content Worksheet

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army on 1 June 2006 in the rank/grade of SPC/E-4 and she held military occupational specialty 42A (Human Resources Specialist). 

2.  She was assigned to Headquarters and Headquarters Company, 15th Signal Brigade, Fort Gordon, GA. 

3.  On 8 June 2010, she appeared before the 15th Signal Brigade SGT/SSG promotion board.  She was recommended for promotion to SGT by the board members and the promotion board authority approved her recommendation. 
4.  She was reassigned to Germany and assigned to the 230th Military Police (MP) Company, 95th MP Battalion, 18th MP Brigade. 

5.  On 25 August 2011, Headquarters, 18th MP Brigade published Orders 237-07 promoting her to SGT/E-5 with an effective date of 1 September 2011. 

6.  In January 2012, a promotion audit was conducted by the 18th MP Brigade in relation to the applicant's promotion after the IG had conducted an investigation and determined the applicant had been erroneously promoted to SGT.  The IG stated that the 230th MP Company placed an inaccurate APFT date (2011/04) into the applicant's ERB.  Based on this audit, a determination was made that: 

	a.  The applicant's APFT is dated 29 October 2009.  She was diagnosed with cancer and placed on a temporary physical profile.  She underwent surgery at WRAMC on 8 February 2010 and she received a physical profile that expired in September 2011.  

	b.  She was advised through her chain of command to submit a copy of her APFT scorecard, dated April 2011, and a copy of her Body Fat Content Sheet, dated June 2010. 

	c.  She should have been removed from the promotion standing list once her APFT became older than 1 year.  Her medical condition was not combat-related or due to pregnancy, the only two reasons that a Soldier could remain on the promotion list with an APFT score older than 1 year.  

	d.  The Soldier was erroneously promoted based on the unit's errors.  She should have been removed and she should be able to reintegrate onto the list once she was able to take the APFT. 

	e.  Her promotion should be revoked and her former rank of SPC should be restored with a date of rank of 29 October 2009.  She should also be allowed defacto status which would allow her to keep any pay and allowances received as a SGT. 

7.  A DA Form 4187, undated, was subsequently initiated by the unit revoking her erroneous promotion to SGT and restoration of her rank to SPC with a date of rank of 29 October 2009. 

8.  On 26 September 2012, an official at HRC promotions responded to the applicant's Member of Congress in response to the applicant's concerns.  The official explained that Soldiers must possess a current record APFT score.  Exceptions are made to this rule for combat-related injuries, pregnancy, and deployed Soldiers.  

9.  An advisory opinion was received from HRC on 23 September 2013 in the processing of this case.  An advisory official recommended disapproval of the applicant's request.  The official stated the applicant's records did not reflect a valid APFT at the time of her promotion.  In accordance with Military Personnel Message Number 12-191, Table 3-1, Soldiers must possess a current passing record APFT score in accordance with applicable regulations and field manuals.  The applicant had multiple temporary profiles.  Soldiers with temporary profiles of long durations (more than 3 months) may take an alternate test if approved by the commander and health care personnel.  If the applicant is unable to produce a valid APFT for her September 2011 promotion, she does not qualify for promotion to SGT. 

10.  The applicant was provided with a copy of this advisory opinion but she did not respond. 

11.  The applicant provides multiple character reference letters from various individuals who comment on her medical condition and the events that occurred while she was with the 230th MP Company. The authors agree she has demonstrated an outstanding level of competence and that she deserves the promotion to SGT. 

12.  MILPER Message 12-191, Subject: Semi-Centralized Promotion Eligibility Criteria refers to the appropriate table in Army Regulation 600-8-19 (Enlisted Promotions and Reductions) for the eligibility criteria for promotion to SGT. 

13.  Army Regulation 600-8-19 provides for enlisted promotions and reductions. Table 3-4 states the eligibility criteria for promotion to SGT is that a Soldier must possess a current passing score in accordance with applicable regulations and field manuals.  The APFT must not be older than 12 months from the date the Soldier met the cutoff score.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant appeared before the June 2010 SGT/SSG promotion board and she was recommended for promotion to SGT.  The APFT scorecard used for this recommendation is dated 29 October 2009.  There is no other APFT scorecard subsequent to this date.  

2.  The applicant underwent surgery and she was issued a series of temporary profiles.  Some of these profiles prevented her from taking the APFT.  However, none prevented her from taking an alternate APFT.  She met the cutoff scores for 1 September 2011 and she was promoted to SGT by Orders Number 237-07 issued by the 18th MP Brigade.

3.  An audit of her promotion by the IG and later the 18th MP Brigade determined that she should have been removed from the promotion standing list because she did not have a valid APFT score.  For unknown reasons, her unit kept her on the promotion standing list and ultimately erroneously promoted her to SGT.  Accordingly, her unit revoked her erroneous promotion orders and granted her defacto status. 

4.  While it is clear that there were errors committed by the applicant's unit, the fact remains that the applicant was ineligible for promotion to SGT.  Regretfully, there is insufficient evidence to grant her relief. 

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)                                         AR20130014793





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ABCMR Record of Proceedings (cont)                                         AR20130014793



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