PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            13 September 2001 
	DOCKET NUMBER:   AR2001055835

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

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Mr. Terry L. Placek		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests her promotion to pay grade E-7 be reinstated.

3.  The applicant states that she was found unfit for duty only after her promotion to pay grade E-7.  

4.  The applicant’s military records show that she was assigned to the Army Reserve Delayed Entry Program from 29 May to 15 August 1990.

5.  On 16 August 1990, she enlisted in the Regular Army for 4 years.  She completed her required training and was awarded military occupational specialty 98X1L (EW/SIGINT Specialist – Linguist).

6.  She was considered and selected for promotion to pay grade E-7 by the 1999 selection board and her name was placed on the Sergeant First Class (SFC) Selection List dated 3 September 1999.

7.  On 9 November 1999, a medical narrative summary was completed based on a physical examination.  This summary indicated a right shoulder anterior reconstruction in November 1992; a left knee diagnostic arthroscopy with plica excision in May 1994; a right shoulder arthroscopic debridement in September 1996; a left knee distal patellar realignment Elmslie-Trillat procedure in December 1996; hemorrhoid removal in March 1977; a right knee distal patellar realignment Elmslie-Trillat procedure in May 1997; and, a cesarean section in June 1998. The summary concluded she did not meet medical retention standards based on a diagnoses of “Bilateral plantar fasciitis; bilateral anterior knee pain status post attempt at distal patellar realignments, failed; chronic right shoulder pain secondary to failed reconstruction and subsequent arthroscopic debridement with evidence of glenohumeral chondromalacia”.  Her case was referred to a Medical Evaluation Board (MEBD).

8.  On 16 November 1999, she was issued a physical profile for multiple arthralgias (joint pain) which precluded her running, jumping, marching, push- ups, and deep knee bending.

9.  On 14 January 2000, an MEBD diagnosis indicated she had bilateral plantar fasciitis; bilateral anterior knee pain status post attempt at distal patellar realignments, failed; and chronic right shoulder pain secondary to failed reconstruction and subsequent arthroscopic debridement with evidence of glenohumeral chondromalacia.  Her case was referred to the Physical Evaluation Board (PEB) for disposition and adjudication.

10.  She was promoted to pay grade E-7 effective 1 February 2000.

11.  On 7 February 2000, a PEB found her physically unfit based on bilateral foot, knee, and right shoulder pain and recommended a combined rating of               20 percent.

12.  On 4 April 2000, the Total Army Personnel Command (PERSCOM) Enlisted Promotions Branch erroneously administratively removed her from the                3 September 1999 SFC Selection List, under Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 4-18 (Rules for administrative and command initiated removals from a centralized promotions list) based on the results of a MEBD vice a PEB.

13.  On 19 July 2000, she was honorably discharged under Army Regulation 635-40, paragraph 24B(3) for disability with severance pay in pay grade E-6.  Her separation document indicates she had 9 years, 11 months and 4 days of creditable service for retirement.

14.  Army Regulation 600-8-19 specifies:

(a)  paragraph 4-18 (dated 1 November 1991), in effect at that time, indicates, in pertinent part, that there is nothing which authorizes the removal from a selection list based on the results of a MEBD.  However, paragraph 1-10 (Recommendations for removal from a Departmental Headquarters (DA) list will be processed as follows) does indicate that before sending a removal action to DA for a standby advisory board to consider, it will be sent, in writing, to the soldier.  The soldier will be allowed to respond to the proposed action, and may submit a rebuttal within 15 days after receipt of the written notice.  A soldier who elects not to rebut, will sign a statement that he or she has reviewed the proposed action and elects not to submit a rebuttal.

	(b)  paragraph 1-10 (nonpromotable status) indicates, in pertinent part, that soldiers are nonpromotable to a higher grade when one of the following conditions exist: “u. A PEB determines that a soldier is no longer qualified for continued active service”.

15. Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded members being separated for physical disability.  It states, in pertinent part, that at the time any member of an armed force who is separated for physical disability is entitled to the grade equivalent to the temporary or permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he or she is separated and which was found to exist as a result of a physical examination.

CONCLUSIONS:

1.  The evidence of record shows the applicant was removed from the SFC Selection List, dated 3 September 1999, based on the results of an MEBD, and not the required PEB.  Her name was therefore improperly removed from the list. This action caused the erroneous revocation of her promotion to pay grade E-7.

2.  The applicant had been promoted to pay grade E-7 prior to the PEB’s declaration of unfitness.  There is no evidence in the available records to show that the applicant was provided an opportunity to respond to the proposed removal action as required by paragraph 1-10(b) 13, Army Regulation 600-8-19.

3.  The applicant’s records should be corrected to show she was not removed from the promotion list and was separated in pay grade E-7.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected to show that the individual concerned was not removed from the 3 September 1999 SFC Selection List and is entitled to all pay and allowances based on her promotion to pay grade E-7 effective1 February 2000.

BOARD VOTE:  

_tlp____  _fne____  _jed____     GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		        Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001055835	
SUFFIX		
RECON		
DATE BOARDED	20010913	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.05	
2.		
3.		
4.		
5.		
6.