IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140005519 


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 an adjustment of the effective date of promotion to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR) from 21 March 2013 to 5 April 2010. 

2.  The applicant states:

* when she was appointed in the USAR in 2003, she had an approved medical waiver at the Military Entrance Processing Station (MEPS)
* she also had a P-2 physical profile from the 63rd Regional Support Command (RSC) in 2005
* she was selected for promotion in 2009 and the promotion qualification statement was sent on 5 April 2010
* her promotion was blocked due to the medical waiver/profile and it took the 63rd RSC 2 years to find out the 2003 MEPS waiver was invalid
* she was sent before a physical evaluation board (PEB) that found her fit for duty and as such, her promotion qualification was resubmitted 
* when the U.S. Army Human Resources Command (HRC) received the submission, they published an order effective 21 March 2013
* it was not her mistake that the system and the people involved failed in their tasks
* the delay in this promotion not only cost her financially and professionally, it also affected her ability to attend military schools



3.  The applicant provides:

* Extensive email communications with several individuals regarding her medical waiver, promotion submission, and follow-up
* Multiple emails to the Office of the Inspector General, Western Medical Area Readiness Support Group 
* DD Form 3349 (Physical Profile)
* Extract of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)
* Notification of medical evaluation in the USAR
* Printout of promotion list from Army Times
* Promotion Qualification Statement
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* LTC promotion orders, effective 21 March 2013
* Self-authored chronology of events

CONSIDERATION OF EVIDENCE:

1.  In 19 August 2003, the applicant was granted a medical waiver for appointment into the USAR.  She had received a MEPS physical examination on 28 February 2003 and she was found disqualified due to having osteoarthritis dorsal spine with wedging (she was previously involved in a car accident).  After the Command Surgeon, U.S. Army Recruiting Command, consulted with the Office of The Surgeon General, her medical waiver was approved.  

2.  She appointed as a Medical Corps (MC) Reserve commissioned officer of the Army in the rank of major and executed an oath of office on 22 December 2003.  Based on constructive service credit, her date of rank was established as the same date. 

3.  She completed the Army Medical Department Officer Basic Course from 5 to 12 December 2005 and she was awarded area of concentration 62B (Field Surgeon) on 28 December 2006. 

4.  On 9 February 2009, she was issued a physical profile for a back condition, left upper extremity condition, and decreased visual acuity.  The profile was of a permanent nature.  It stated she did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness).

5.  She was selected for promotion to LTC by the Fiscal Year 2009 (FY 09), Reserve Component (RC), AMEDD, Promotion Selection Board (PSB).  This PSB was approved on 16 July 2009 and officially released on 6 August 2009. She was assigned to the 7234th Medical Support Unit, Vallejo, CA. 
6.  On 24 September 2010, her chain of command forwarded an AHRC Form 
56-R, (Promotion Qualification Statement) indicating her promotion qualification (component, position, paragraph and line number, etc…). 

7.  On 20 October 2010, HRC responded by email stating the applicant was coded as permanent physical disqualification, and as such HRC could not promote her. 

8.  In 2011 and 2012, the applicant exchanged emails with various individuals regarding her medical condition, physical profile, the PEB process, and her promotion status. 

9.  On 1 April 2011, she was notified by the 63rd Regional Support Command that as a result of her medical evaluation, she was found medically disqualified for retention in the USAR and the reason for the disqualification was recorded on her medical profile.  

10.  She was advised of her rights and elected an informal PEB to review her records for a final determination of fitness.  

11.  On 21 March 2013, an informal PEB convened and indicated she had a compression fracture of the thoracic spine that required some duty limitations; however, she was able to perform her duties as a physician with some limitations.  The PEB found her fit for duty.  She concurred. 

12.  On 19 September 2013, her chain of command resubmitted her Promotion Qualification Statement indicating her promotion disqualification had been lifted. 

13.  On 5 November 2013, HRC published Orders B-11-307441 promoting her to LTC with an effective date and date of rank of 23 March 2013. 

14.  An advisory opinion was received from HRC-Promotion Branch.  An advisory official reviewed her case and stated: 

	a.  The applicant was considered and subsequently recommended for promotion to rank of LTC by the FY09, RC AMEDD PSB which was approved on 16 July 2009.  Normally the earliest effective date of promotion to LTC is the date the officer was placed in an authorized higher position provided it was no earlier than the date the respective board was approved in accordance with (IAW) Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-21.  However, if the officer is under suspension of favorable personnel actions associated with AR 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)), then the promotion is automatically delayed IAW AR 135-155, paragraph 4-11(c)(6).

	b.  She was subsequently flagged for being physically disqualified under the provisions of AR 600-8-2 on 23 June 2010.  Therefore, when Officer Promotions received the AHRC Form 56-R, dated 13 September 2010, for the officer being in an authorized LTC billet effective 14 April 2010, the officer was subsequently flagged and therefore automatically delayed from promotion by the aforementioned reference.  

	c.   Officer Promotions is in possession of email correspondence from the Deputy Chief of Staff G-1, Director of Military Personnel Management Policy Proponent, dated 10 February 2009, that unofficially removed the requirement for delaying physically disqualified Soldiers and stated that an associated policy letter was forthcoming.  Unfortunately, the respective guidance was never formalized into official written policy and therefore never implemented. 

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

16.  AR 135-155 provides for promotion of commissioned officers in the USAR.  

	a.  Paragraph 4-11(a) states an officer who has been recommended for promotion to the next higher grade must meet the requirements before being promoted in the Reserve components.  The officer must be on the Reserve Active Status List, be in the zone of consideration listed in Tables 2-1 or 2-3, as appropriate, be medically qualified, have undergone a favorable security screening, meets the standards of the Army Body Composition Program, and be a satisfactory participant.

	b.  Paragraph 4-11(c) states an officer’s promotion is automatically delayed when the officer is under, or should be under, suspension of favorable personnel actions. 

	c.  Paragraph 4-21 states, except as provided elsewhere in this regulation, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met (chapter 2 and paragraph 4-11).  When an officer does not meet the qualifications for promotion (paragraph 4-11), the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USAR on 22 December 2003.  At the time of appointment, she had a medical condition that required a medical waiver for appointment.  She entered the USAR and continued to perform her duties. 

2.  In 2009, she was issued a physical profile that indicated she did not meet retention standards for a back condition, left upper extremity condition, and decreased visual acuity.  The profile was of a permanent nature.  It stated she did not meet retention standards of Army Regulation 40-501.  It does not appear that this action was related to her medical appointment waiver.

3.  Meanwhile, she was selected for promotion to LTC by FY 09 RC AMEDD PSB.  However, when her chain of command forwarded her promotion packet, HRC could not promote her because she was not fully qualified for promotion (she had a medical disqualification). 

4.  She was notified of the medical disqualifications and advised of her rights.  She elected an informal PEB to review her records for a final determination of fitness.  As such, on 21 March 2013, an informal PEB convened and found her fit for duty.  She concurred. 

5.  Shortly after the PEB found her fit, her chain of command resubmitted her promotion statement confirming her full qualification for promotion.  HRC published the promotion order effective 21 March 2013, the date the PEB found her fit for duty. 

6.  When an officer does not meet the promotion qualifications, the effective date of promotion will not be earlier than the later date all qualifications are met.  She met the qualifications on 21 March 2013.  There is neither an error nor an injustice.  Therefore, her promotion effective date and DOR are correct and require no further adjustment. 

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)                                         AR20140005519





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ABCMR Record of Proceedings (cont)                                         AR20140005519



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