MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 February 2001
	DOCKET NUMBER:   AR2000042681

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In his 24 May 2000 application, that the Army Board for Correction of Military Records (ABCMR) use its equitable authority to either make an exception to FM 21-20 [Field Manual 21-20, Physical Fitness Training] and AR 600-8-19 [Army Regulation 600-8-19, Enlisted Promotions and Reductions], or alter his official Army Physical Fitness Test (APFT) score card to reflect a score that would give him sufficient promotion points to be eligible for promotion.  The applicant also requests, in the alternative, that he be reclassified into a military occupational specialty (MOS) where it is possible for him to earn enough promotion points to qualify for promotion and he requests that he be reclassified into MOS 74B (information systems operator/analyst). 

APPLICANT STATES:  That the current provisions of Field Manual 21-20 and Army Regulation 600-8-19 make it impossible for him to earn sufficient promotion points to be eligible for promotion to the rank of staff sergeant in his military occupational specialty (MOS).  He states the practical effect of this is that he is allowed to serve on active duty, but is precluded from promotion based on a physical disability.  The applicant contends that this is a form of employment discrimination based on physical disability that is unrelated to his abilities as a soldier and the needs of the Army.  

The applicant also contends that the MOS/Medical Retention Board (MMRB), which retained him on active duty, determined his physical profile would not interfere with his continued service.  He contends, however, that his inability to advance in rank contradicts that decision, that his current situation is unjust and that it creates a system of disability discrimination impacting on an entire class of soldiers who continue to serve without chance of promotion.  The applicant also contends that such discrimination “violates the spirit of policies promulgated by Congress, the Department of Defense and the United States Army.”  The applicant then makes reference to the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, Executive Order 12250 (November 2. 1980) and Army Regulation 600-7 (Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army).

The applicant also states that he has had a permanent profile since 1989 which prohibits him from completing the sit-up and two-mile run events of the APFT and that he appeared before a MMRB which voted to retain him and reclassify him into another MOS where his profile would not interfere with his continued service. He states that he has continued to serve faithfully and has continued to receive outstanding evaluations.

The applicant then describes the Army system of promotion points in which the APFT accounts for up to 50 of the possible 800 points awarded on the DA Form 3355 (Promotion Point Worksheet).  The number of promotion points awarded is based on a scale from zero points to 50 points linked to the soldier’s score on the APFT.  The applicant cites the Army promotion regulation which provides that a soldier with a permanent profile receives the minimum qualifying score of 60 points for each APFT event not completed due to profile and receives the actual number of points scored on the APFT events completed.  The applicant contends that the maximum score he can achieve on the APFT is 100 points for push-ups (based on participation in this event), 60 points for the sit-up event (in which he cannot not participate), and a rating of “go” for the 2.5 mile walk which is an alternative event for the two-mile run.  Based on attaining maximum scores, the applicant states that his maximum score for the APFT is calculated as follows:  (1)  He receives 100 points for push-ups plus 60 points for sit-ups for a total of 160 points;  (2) 160 points are divided by two to determine the score for the 2.5 mile walk which equals 80 points;  (3)  His points for each event are added—100 (push-ups) plus 60 (sit-ups) plus 80 (2.5 mile walk) which equals 240 APFT points;  (4) 240 points scored on the APFT results in award of 25 promotion points to be entered on the promotion point worksheet.  As a result, the applicant concludes that he can only attain a maximum of 25 promotion points from 50 possible promotion points. 

The applicant then described his specific promotion situation.  He stated that the Department of the Army promotion point cutoff score for advancement to staff sergeant (pay grade E-6) at the time of his 24 May 2000 application to the Army Board for Correction of Military Records (ABCMR) was 798 points and that score has not fallen below 788 in the preceding 18 months.  He argues that the high cutoff scores for promotion combined with the rules governing allocation of promotion points to soldiers with profiles creates a class of soldiers who can never hope to be eligible for promotion.  

The applicant concludes by stating that he has enclosed copies of his past evaluations, awards and decorations to demonstrate the quality of his service to the U.S. Army.  Further, he states that if the ABCMR denies his request, then he will not be able to be promoted to staff sergeant and will eventually be forced to cut short what has been a long and successful career.  The applicant states that he wants to continue serving in the Army with at least the hope of being recognized for his service through earned promotions.  Finally, he requests full consideration by the ABCMR while taking into account the effect of current Army policy on himself and many other soldiers throughout the Army who face the same injustice.

In support of his application, the applicant submitted 11 enclosures which are listed on page 2 of his addendum to the DD Form 149 (Application for Correction of Military Records.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant initially entered the delayed entry program and was enlisted in the Regular Army on 30 December 1987.  He completed training as a light wheeled vehicle mechanic (MOS 63B) and was assigned to Germany.  In October 1989, he was reclassified into MOS 71L (administrative specialist) and subsequently served at Fort Benning, Georgia, a second tour of duty in Germany, and at the Military Entrance Processing Station in Minneapolis, Minnesota in that MOS.  The applicant is currently serving on active duty in the rank of sergeant (pay grade E-5) at Headquarters, U. S. Pacific Command (USPACOM) in Hawaii.

Records show that, on 17 October 1989, a MMRB determined the applicant did not meet the criteria for his primary MOS of 63B, noted that his performance to date had been excellent and recommended reclassification into another MOS for which he was qualified.  The applicant submitted a rebuttal to the decision of the MMRB in which he stated that he had no desire to work in another MOS than 63B and requested that he be presented to a Physical Evaluation Board (PEB) or be separated from active military service.  

On 13 June 1990, the applicant was issued a DA Form 3349 (Physical Profile) by medical officials at the 5th General Hospital for “HERNIATED DISC L4/5” with a physical profile of 113111.  Block 7 (Functional Activities) of this profile showed under “PHYSICAL FITNESS TEST” that the applicant could participate in the push-ups, walk, swim and bicycle, but not the two mile run or sit-ups. 

Although the reclassification documents are not in the records available to the Board, the applicant’s DA Form 2-1 (Personnel Qualification Record-Part II) shows that he completed advanced individual training in MOS 71L (administrative specialist) on or about 18 January 1991 and has performed in that MOS since that date.

Records show that the applicant voluntarily reenlisted for a term of three years on 31 May 1991.  On 5 February 1992, he voluntarily extended this enlistment so that he could meet the service requirements for an assignment in Germany.  On 25 April 1997, the applicant voluntarily reenlisted again for a term of 5 years.

Records show the applicant was advanced to sergeant effective 1 June 1994 and has completed the Primary Leadership Development Course and the Basic Noncommissioned Officer Course.

The applicant provided a copy of his promotion point worksheet, dated 4 November 1999.  This worksheet shows that he received 546 of 800 administrative points which included points for awards, military and civilian education, rifle marksmanship and the APFT.  Under the heading Physical Fitness Test,  the entries show that he received an APFT score of 228 points which resulted in award of 20 promotion points.  The applicant also received a total of 196 points out of a maximum of 200 points from the promotion board before which he personally appeared.  The total of administrative and board points was 742 promotion points.  

In the processing of this case, an advisory opinion, dated 18 July 2000, was provided by the Chief of the Promotions Branch of the U.S. Total Army Personnel Command (PERSCOM).  The advisory opinion restated the applicant’s request to alter his APFT scorecard to give him sufficient promotion points to be eligible for promotion.  Essentially, the advisory opinion confirmed all the facts presented by the applicant regarding calculation of promotion points awarded for APFT scores of profiled personnel and concluded that awarding the maximum number of promotion points for the APFT to soldiers with permanent profiles who cannot complete certain APFT events would unfairly disadvantage other soldiers.  The Chief of Promotions also pointed out that the applicant might obtain additional promotion points by furthering his civilian education and that he might consult with his reenlistment noncommissioned officer to pursue reclassifying into another MOS.  In conclusion, the advisory opinion set forth the recommendation that the applicant’s request to alter his APFT be denied.

The applicant was provided an opportunity to submit comments on the PERSCOM advisory opinion.  He submitted comments and an Army major general in the position of Deputy Chief of Staff of USPACOM also provided comments on behalf of the applicant.  

The applicant contended in his comments that the information he provided “was not given fair consideration prior to coming to a decision”; therefore, he is providing additional information.  The applicant argues he did not request that his APFT score be maximized, but that he requested an alternative system for averaging scores so he would have ample opportunity to score 300 points on the APFT.  He states that attaining an APFT score of 300 is impossible in his case and that the Army must have realized in 1994 the system was unfair when new averaging rules were placed in effect for scoring the run event.  However, the applicant argues that the new averaging rules only solve half of his specific problem because he cannot participate in two APFT events.  He contends that, when his profile was issued, it specified the APFT would consist of the push-up event and a cardiovascular event, and that the sit-up event would be waived.  He then cites Webster’s Dictionary in defining the term “waived” and concludes with his interpretation that, based on this definition, the sit-up event cannot be considered a relevant factor in calculating his overall APFT score.

As summarized, the second point set forth by the applicant is that the advisory opinion suggested furthering his civilian education, but since he did not raise that issue he will confine his comments to only his actions.  He then states that the promotion point system was changing when he submitted his application to the ABCMR and he now has 761 promotion points and has received the maximum allowable points in all areas except:  for promotion board points where he has attained 147 out of 150 possible points; for weapons qualification where he has attained 48 out of 50 possible points; and for the physical training test where he has attained only 16 points out of a possible 50 points.  As a result, he concludes that, under the current regulations, the maximum promotion points he can accrue are 770 and he will never be able to be promoted unless he can maximize the promotion points for the physical training test. 

The applicant then addressed the comment in the advisory opinion regarding the unfair disadvantage created to other soldiers if the applicant is awarded APFT points thereby increasing his promotion points.  The applicant contends that it “is unfair to live in today’s Army WITH a permanent profile without having any promotion opportunity.  By not allowing soldiers who fall in this category the same opportunity is simple discrimination.”

The applicant also addresses the matter of transfer to another MOS.  He states that he is the reenlistment noncommissioned officer for his headquarters and that he did submit a request to change his MOS to 79S (career counselor), but it was denied because of his “P3 profile.” The applicant asserts that once a soldier goes over ten years of service, there are no options available for reclassifying.  He states that there are provisions for sergeants with over 12 years of service and more than 700 promotion points to reclassify into a shortage MOS; however, for all announced shortage MOS’s, he requires a waiver of his “P3 profile.”  He states that he has submitted a request to reclassify into a shortage MOS and for a waiver to do so, but has not received a reply.

The applicant concludes his comments by stating that he is “saddened” by the fact he must leave his MOS in order to get promoted.  He argues that he has served honorably and his record speaks for itself.  He states that he “is not looking for a handout--just equality.”  The applicant states that he asking for correction of a problem and does not want the ABCMR to “shun” this problem away for someone else to encounter in years to come.

The Deputy Chief of Staff for USPACOM provided comments on behalf of the applicant to the PERSCOM advisory opinion.  This general officer points out that denial of an altered APFT score in this case is a clear example of a “flawed system” and that “current rules clearly penalize a soldier with a permanent profile.”  He also states his staff is working to change the current regulations.

The Deputy Chief of Staff for USPACOM also states that he wants to do everything possible to get the applicant promoted since he is an “outstanding soldier and a great asset to [his] personal staff.”  He believes that the denial of the applicant’s request will be a blow to his morale, but, in effect, also will deny his sufficient promotion points to be promoted in his current MOS.  In closing, the general officer argues that the Army thought enough of the applicant to allow a change to his MOS when he received a permanent profile and we must now think enough of him to allow a fair chance at promotion.  Further, he states that he supports changing the applicant’s MOS and will pursue that matter with PERSCOM.

Chapter 7 of Army Regulation 40-501 (Standards of Medical Fitness) governs physical profiling.  The regulation provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

Army Regulation 600-60 (Physical Performance Evaluation System) implements and establishes operating procedures to upgrade the physical quality of the Army and ensure that each soldier is physically qualified to perform in his or her primary military occupational specialty (MOS) or specialty code worldwide and under field conditions.  The regulation requires that any soldier with a permanent rating of “3” in any one of the physical profile serial (PULHES) factors must be referred to a MOS/Medical Retention Board (MMRB) to determine if that soldier is physically qualified to perform in his or her primary military occupational specialty (MOS) or specialty code worldwide and under field conditions.  The MMRB may be convened by officers exercising general court-martial convening authority and will consist of a president in pay grade 0-6; a medical officer in the pay grade 0-6, 0-5 or a civilian doctor; two officer board members in pay grade 
0-5, an enlisted member in the rank of sergeant major (pay grade E-9) when officers or warrant officers are not being considered; a personnel officer and a recorder.  Individuals considered by MMRB’s are entitled to be accompanied or represented by an officer or noncommissioned officer of their choice, but are not entitled to representation by a legal officer.  The MMRB is required to recommend to the convening authority:  (1) retention in the soldier’s primary MOS or specialty code; (2) the requirement to be reclassified; (3) probationary status; or (4) referral to the Army’s physical disability system.  The soldier may submit written rebuttal to any of the findings or recommendations within two days after adjournment of the MMRB.  The MMRB proceedings must be reviewed to assure a full and fair hearing, compliance with regulation, and complete records.  After review, the convening authority may  approve the recommendations and forward the recommendation to the servicing Military Personnel Office, refer the case for further action, or disapprove the findings and take other appropriate actions.

Army Regulation 600-60 provides that a soldier will be recommended for reclassification or change of specialty codes only when the soldier cannot physically perform the full range of primary MOS or specialty code duties, but possesses the physical ability to perform in a current shortage or balanced MOS or specialty code.  The U.S. Total Army Personnel Command is responsible for final action on the reclassification action and will refer the soldier for physical disability processing if he or she does not qualify for a MOS.    

Army Regulation 600-8-19 (Enlisted Promotions and Reductions) governs the enlisted promotions and reductions function of the military personnel system.  Chapter 3 of this regulation governs semicentralized promotions to sergeant and staff sergeant.  Figure 3-1 is a sample of a DA Form 3355 (Promotion Point Worksheet) with instructions on how to complete the worksheet and specific instructions for completion of the entries under “Physical Fitness Test.”  The instructions state that a soldier must attain a score of 60 on each event shown as “situps, pushups, and two mile run.”  The regulation also states that those soldiers with permanent physical profiles will be granted the minimum qualifying score of 60 points for each waived event and use their actual score for each event taken.  They must also qualify on the two mile run or approved alternate test.  Effective 28 September 1994 the Deputy Chief of Staff for Personnel modified these instructions to state that those soldiers taking an alternate event for the two mile run and receiving a “go” will receive a numerical score equal to the average score of the other two events. 

Section 1552 of Title 10 United States Code (10 U.S.C. 1552) is the law governing correction of military records.  Section 1552 (g) defines the term military record, in part, as a document or other record that pertains to (1) an individual member or former member of the armed forces, or (2) at the discretion of the Secretary of the military department concerned, any other military matter affecting a member or former member of he armed forces.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board reviewed the applicant’s initial request for relief and determined that he made multiple requests for relief.  He requested an exception to the limitation on the number of AFPT points a soldier with physical profile can earn or that the Board alter his most recent APFT score to provide sufficient promotion points to make him eligible for promotion.  He also requested, in the alternative, that he be reclassified into a military occupational specialty (MOS) where it is possible for him to earn enough promotion points to qualify for promotion, specifically reclassification into MOS 74B (information systems operator/analyst). 

2.  The Board also noted the applicant’s contention, stated in his rebuttal to the PERSCOM advisory opinion, that his “request wasn’t to maximize [his] Physical Training score, but to request an alternate system for averaging scores so [he] would have ample opportunity to score a 300 on the Army Physical Fitness Test.” 

3.  In part, the applicant has requested that the Board make an exception to or modify the current procedures in Army regulation under which soldiers are awarded promotion points based on their APFT scores.  The law and regulation governing the operations of the ABCMR limit its jurisdiction to a document or other record that pertains to (1) an individual member or former member of the armed forces, or (2) at the discretion of the Secretary of the military department concerned, any other military matter affecting a member or former member of he armed forces.  As a result, it is not appropriate for the Board to act on any portion of the applicant’s request related to changing Army regulations or procedures specified therein for awarding promotion points to all soldiers considered for promotion under semicentralized promotion procedures to sergeant and staff sergeant.  The Board further finds that changes to procedures for scoring the APFT and allocating promotion points are matters to be considered by the proponents for those regulations and procedures, and the Board notes that the Deputy Chief of Staff for USPACOM is in the process of bringing these matters to the attention of these proponents.  Therefore, the Board will defer in these matters to the decision of those Army officials responsible for promulgating the regulations and procedures in question.

4.  The Board considered the applicant’s alternative request to alter his most recent APFT score to provide sufficient promotion points to make him eligible for promotion.  In this matter, the Board finds that it is inherently unfair and inconsistent with the needs of the Army to award additional promotion points to the applicant or to administratively increase his APFT score as a basis for increasing his promotions points thereby making him eligible for promotion.  To do so would possibly advance him to staff sergeant (pay grade E-6) ahead of sergeants in MOS 71L who have more promotion points than he does.  To promote the applicant as he requests also ignores the facts that MOS 71L at the staff sergeant level is over strength and that the high cutoff score limits promotion to only the most highly qualified.  Finally, the Board notes that the applicant has the option of requesting reclassification into an under strength MOS; therefore, any action to promote him now in MOS 71L is also not consistent with meeting the needs of the Army. 

5.  The Board also considered the applicant’s alternative request to place him in a MOS, specifically MOS 74B, where he could earn enough promotion points to qualify for promotion.  The Board noted that procedures exist for requesting reclassification and the applicant has stated that he is currently seeking reclassification.  Therefore, the Board will defer to the PERSCOM officials who are responsible for reclassification actions to render a decision regarding reclassification of the applicant to MOS 74B or any other MOS.

6.  The Board noted the applicant’s contention that he is being subjected to a form of employment discrimination based on physical disability that is unrelated to his abilities as a soldier and the needs of the Army.  Further, he argues that his situation is “unjust” in that it creates a system of disability discrimination impacting an entire class of soldiers who continue to serve without chance of promotion.  The Board finds these contentions without merit because the applicant had no obligation to serve beyond the terms of his original enlistment and he voluntarily reenlisted and extended to continue his service.  Further, the Board also notes that the promotion regulation currently in effect has been in effect since 1 November 1991 and that the applicant has been aware of the limitations on APFT promotion points since he became eligible for promotion to staff sergeant (pay grade E-6).  Finally, the applicant has submitted no evidence that he is being treated inconsistently with other profiled soldiers under the regulations currently in effect or that the Army has violated any law or regulation by enforcing standards for medical fitness, physical fitness or award of promotion points. 

7.  The Board noted the applicant’s contention that that the MMRB, which retained him on active duty, determined his physical profile would not interfere with his continued service.  There is no evidence in the documents related to the MMRB decision submitted by the applicant which supports this contention.  The 17 October 1989 memorandum conveying the MMRB’s recommendations stated that the applicant could not perform in his current MOS and that he should be reclassified.  The general officer who convened the MMRB approved recommendation to reclassify him and did not infer or state that the applicant’s profile would not hinder his advancement or otherwise interfere with the applicant’s continued service to the Army.  

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

10.  While the Board’s decision in this case is not favorable, the Board wants the applicant to know that this decision does not diminish the quality of his service to our Army and our Nation.  His performance of duties clearly has been in keeping with the finest traditions of the noncommissioned officer corps and should be a source of pride to the applicant and all who know him.  While the Board is empathetic with the applicant’s promotion situation, the same longstanding rules apply to all soldiers who have voluntarily elected to continue Army service in spite of physical impairment.  As a result, the Board is not predisposed in this case to advance the applicant over other soldiers in the same situation who are equally deserving or to overturn or make exceptions to Army regulations and procedures designed to ensure that every soldier in the Army is physically qualified to perform in his or her primary military occupational specialty (MOS) or specialty code worldwide and under field conditions.  

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JNS__  __RWA__  __MHM___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042681	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010227	
TYPE OF DISCHARGE	N/A ACTIVE DUTY	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	131.0000.0000	
2.		
3.		
4.		
5.		
6.