IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130020402 


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 of sergeant (SGT)/E-5.

2.  The applicant states he was denied an automatic promotion to pay grade E-5 due to an erroneous FLAG.  He was wrongfully flagged and as a result his promotion was denied prior to his discharge.

3.  The applicant provides copies of the following:

* Enlisted Record Brief
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* two Enlisted Promotion Reports
* Memorandum for Record (MFR)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in the rank of specialist (SPC)/E-4, on 2 April 2007.  He served as a motor transport operator.  He reenlisted in the RA on 20 July 2008.  He served in Iraq from 14 June 2008 through 15 September 2009.

2.  A DA Form 5500 (Body Fat Content Worksheet – (Male)), dated 19 November 2012, shows he was not in compliance with Army standards.

3.  A DA Form 268, dated 20 November 2012, shows a FLAG was initiated against him for the weight control program.  

4.  A DA Form 5500, dated 9 May 2013, shows he was not in compliance with Army standards.

5.  A DA Form 4856 (Developmental Counseling Form), dated 26 July 2013, shows he was advised of the following.

   a.  He was not being recommended for promotion for the month of August 2013.  He was currently flagged for being overweight in accordance with Army Regulation 600-9 (Army Body Composition Program) and he had a profile which prevented him from taking the Army Physical Fitness Test (APFT) or attending the range to qualify with his assigned weapon.  

   b.  Due to his profile and his upcoming medical board he would soon be separated from the Army anyway; therefore, he would not be considered or eligible for promotion.  The plan of action was for him to continue medical board processing as it had been explained to him and to work within his limitations to improve his physical fitness.

6.  On the same date, he acknowledged his agreement with the counseling and submitted no comments.

7.  A Unit Enlisted Promotion Report, dated 1 August 2013, shows he was removed from the selection list which was field initiated.

8.  He provided copies of the following:

   a.  A DA Form 268, dated 21 August 2013, which shows a FLAG effective 18 October 2012 was removed due to being erroneous.

   b.  An Enlisted Promotion Report, dated 3 September 2013, that shows he was eligible for automatic promotion list integration.  

   c.  An Enlisted Promotion Report, dated 25 September 2013, which shows he was denied automatic promotion list integration.

   d.  An MFR, dated 26 September 2013, wherein the applicant's company commander stated:
   
   
		(1)  The applicant was denied integration into the Automatic Integration Promotion Standing List for the month of October 2013.  The Battalion S1 never received a non-recommendation for promotion counseling and should have never denied the applicant in eMILPO.

		(2)  Due to an error in the Battalion S1 shop, the applicant should be integrated into the Automatic Integration Promotion Standing List and be eligible to retire at the next pay grade.

9.  On 24 October 2013, he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of permanent disability.  He was credited with completing 6 years, 6 months, and 23 days of net active service with no time lost.  His DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) - SPC
* Item 4b (Pay Grade) - E-4
* Item 12h (Effective Date of Pay Grade) - 2 April 2007

10.  In an advisory opinion, dated 24 April 2014, the Chief, Department of the Army Promotions, Enlisted Promotions, Promotions Branch, HRC, stated:

   a.  After a review of the applicant's application his request had been disapproved.  

   b.  The available records of the Junior Enlisted Promotions Section indicated the applicant did not have a passing APFT score in eMILPO, in accordance with Military Personnel (MILPER) Message 12-241, Table 3-1.  The applicant was denied automatic list integration by CPT Cxxxx Cxxxxxx, as annotated on the Unit Enlisted Promotion Report, dated 1 August 2011.  The applicant signed a DA Form 4856, dated 26 July 2013, indicating his promotion recommendation ineligibility status.

   c.  The applicant received multiple overweight FLAGs which were closed incorrectly in eMILPO.  The applicant received an overweight FLAG, dated 20 November 2013, making him ineligible for promotion.  The applicant also failed to be in compliance with Army Body Fat Composition on 19 November 2012 and 9 May 2013 before his separation on 24 October 2013.  The applicant was not in a promotable status and was not entitled to a promotion in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and MILPER Message 13-106, paragraph 3F.

11.  The advisory opinion was forwarded to the applicant for acknowledgement/rebuttal on 29 April 2014.  He did not respond.

12.  Army Regulation 600-8-19 sets the enlisted promotions and reductions function of the military personnel system.  The regulation states in:

   a.  Paragraph 3-17 – Soldiers in all MOSs who meet the following criteria will be automatically integrated on the SGT promotion standing list, provided they are otherwise eligible for promotion consideration to SGT:

		(1)  Completion of 46 months time in service (to become eligible for promotion at 48 months).

		(2)  Ten months time in grade (to become eligible for promotion at 12 months).

		(3)  Otherwise not ineligible in accordance with this regulation.

		(4)  Not otherwise denied by the Commander.

		(5)  Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list.

   b.  Paragraph 7-4 - commanders and leaders at all levels will notify the promotion authority when Soldiers whose names appear on a list are nonpromotable.  Soldiers may be advanced or promoted only while in a promotable status.  Soldiers in a nonpromotable status may not be selected from the promotion list until they have regained a promotable status.  A Soldier is in a nonpromotable status and will not be selected, promoted, advanced, appointed to a higher grade, when the Soldier is under a FLAG or has a circumstance that requires a FLAG.  The Soldier is in a nonpromotable status whether the FLAG is actually initiated and completed or not; for example, for failure to be compliance of Army Regulation 600-9.  A Soldier is eligible for selection after the case is favorably closed, unless action has been initiated to remove the Soldier from the promotion list.  

13.  Army Regulation 635-40, in effect at the time, established the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.

14.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation states items 4a and 4b will list the active duty grade or rank and pay grade at the time of separation.   

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received an overweight FLAG on 20 November 2012 (a FLAG, dated 18 October 2012, was removed due to being erroneous) for not being in compliance with Army Regulation 600-9.  On 9 May 2013, he was again determined not to be in compliance with Army Regulation 600-9.  

2.  On 26 July 2013, he received counseling on his current FLAG for being overweight and that he would not be considered or eligible for promotion.  The plan of action was for him to continue medical board processing as it had been explained to him and to work within his limitations to improve his physical fitness. He acknowledged counseling on the matter and submitted no comments.

3.  Notwithstanding the issuance of previous FLAGs being closed incorrectly, the fact remains he was flagged for failing to be in compliance with Army Regulation 600-9 and as a result he was denied automatic list integration for promotion to 
E-5.  He acknowledged his ineligibility status and he was retired on 24 October 2013 and he was not on an appropriate list at that time.

4.  As he failed to be in compliance with the Army Body Fat Composition, during his medical processing and prior to retirement; therefore, he was not in a promotable status and not entitled to promotion to pay grade E-5.

5.  Therefore, he was properly retired in pay grade E-4 on 14 October 2013 in accordance with applicable regulations.  This rank was properly listed on his 
DD Form 214.  He is, therefore, not entitled to the requested 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)                                         AR20130020402



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ABCMR Record of Proceedings (cont)                                         AR20130020402



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