IN THE CASE OF: BOARD DATE: 27 March 2014 DOCKET NUMBER: AR20130016992 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 sergeant (SGT)/pay grade E-5 effective 1 May 2013. 2. The applicant states at the time of his application he was in the medical evaluation board (MEB) process. He went to his S-1 and attempted to show that in accordance with Military Personnel (MILPER) Message 13-106 his Army Physical Fitness Test (APFT) should have been updated and he should have been promoted in May 2013. He was told they could only update his APFT with an effective date of 3 June 2013 since that was when all the paperwork was brought in and there was no date specified as to when it was supposed to be updated. 3. The applicant provides: * U.S. Army Physical Evaluation Board (PEB), Fort Sam Houston, TX Memorandum for the Department of Veterans Affairs (VA), dated 17 April 2013 * Human Resources Command (HRC) Memorandum for U.S. Army, Promotion Work Centers, dated 18 April 2013, subject: Department of the Army Promotion Point Cutoff Scores for 1 May 2013 and Junior Enlisted Issues for the Active Component (AC) * DA Form 3349 (Physical Profile), dated 17 May 2013 * his Enlisted Record Brief (ERB) * MILPER Message 13-106, issued 18 April 2013 CONSIDERATION OF EVIDENCE: 1. On 12 June 2007, he enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13M (Multiple Launch Rocket System (MLRS)/High Mobility Artillery Rocket System). He immediately reenlisted on 23 April 2009. He was promoted to specialist (SPC)/pay grade E-4 on 12 June 2009. 2. The applicant's complete processing package in the Physical Disability Evaluation System (DES) is not available for review. 3. A memorandum, dated 17 April 2013, from the PEB at Fort Sam Houston to VA stated the applicant had been found unfit for the following conditions and requested a disability rating percentage: * Left lower extremity compartment syndrome with claudication (pain caused by too little blood flow during exercise) * right lower extremity compartment syndrome with claudication 4. HRC memorandum for U.S. Army Promotion Work Centers, dated 18 April 2013, subject: Department of the Army Promotion Point Cutoff Scores for 1 May 2013 and Junior Enlisted Issues for the AC, announced promotion point cutoff scores for 1 March 2013. a. Soldiers could be promoted to SGT on 1 May 2013 provided they: * were otherwise eligible and held recommended list status as of 20 March 2013 through 8 April 2013 * met or exceeded the cutoff score as they appear beginning on page 5 of the memorandum (the cutoff score for MOS 13M in the primary zone was shown as 39) b. The primary zone for corporal (CPL)/SPC was 36 months of time in service (TIS) and 8 months of time in grade (TIG). 5. The applicant's ERB shows his promotion points as 39 as of June 2011. 6. A DA Form 3349, approved on 17 May 2013, shows he was recommended for an MEB and placed on a permanent profile for: * bilateral lower limb compartment syndrome, claudication * obstructive sleep apnea * chronic scrotal pain * bilateral carpal tunnel syndrome 7. The date of his final determination by a PEB is not available. On 17 December 2013, he was retired by reason of permanent (enhanced) disability and placed on the Retired List. He was assigned a permanent disability rating of 30 percent. His rank/pay grade on his DD Form 214 is SGT/pay grade E-5 with an effective date of pay grade as 17 December 2013. He was placed on the Retired List with the retired grade of SGT. 8. In the processing of this case, an advisory opinion, dated 21 November 2013, was provided by the Chief, Department of the Army Promotions, U.S Army Human Resources Command (HRC). The applicant was provided a copy of this opinion in order to submit matters in rebuttal; however, the applicant has not responded. a. HRC recommended denial of the applicant's request. b. His last APFT was dated September 2011 and expired one year later. When his APFT expired he became ineligible to be on the promotion recommended list. The unit should have removed him from the promotion recommended list. c. HRC stated that as of October 2012 the applicant was not in a promotable status and that he would be removed from the promotion recommended list. 9. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. a. Paragraph 1-10 provides a list of conditions that makes Soldiers (SPC through master sergeant) non-promotable to a higher grade. An expired APFT is not among those conditions listed. b. Paragraph 1-11 states when a delay of promotion has occurred because of suspension of favorable personnel actions and the Soldier’s final report is closed with “Other” (applies to the Army Weight Control Program and the APFT), and he or she would have been promoted while suspension of favorable personnel actions was in effect, provided otherwise eligible, he or she will be promoted. Effective date and date of rank will be the effective date of the removal of the suspension of favorable personnel action. c. Paragraph 1–20a states Soldiers who are pending referral to an MEB or PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. d. Paragraph 1-20c states per the provisions of Title10 United States Code (USC), section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. e. Paragraph 3-17a states that each month, Active Army Soldiers in all MOSs who meet the following criteria will be automatically integrated onto the SGT promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance: * 46 months TIS (to become eligible for promotion at 48 months) * 10 months TIMIG (to become eligible for promotion at 12 months) * otherwise not ineligible in accordance with this regulation * not otherwise denied by the commander * Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list f. Paragraph 3–28b states a Soldier removed from a list and later completely exonerated from the reason that caused the removal will be reinstated. To be completely exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed so that the Soldier is free of any wrong doings or accusation. 10. MILPER Message 13-106, issued 18 April 2013, clarified paragraph 1-20 of Army Regulation 600-8-19. a. Soldiers in the DES who are pending a medical fitness determination referral to a MEB under Army Regulation 40-400, or a PEB under Army Regulation 635-40 remain otherwise eligible for promotion consideration, selection, and pin-on. The issuance of a permanent profile of "3" or "4" alone will not be used as the sole basis for determining primary MOS disqualification. b. While in the DES, Soldiers will not be required to maintain their APFT or weapons qualification for promotion purposes. For semi-centralized promotion consideration, selection, and pin-on, Soldiers within the DES who are unable to perform an APFT or qualify with a weapon will use their last score until they are medically cleared to take the APFT or qualify with a weapon. c. Under the provisions of 10 USC 1372, Soldiers on a promotion list who are retired for physical disability or who are placed on the Temporary Disability Retired List (TDRL) at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted to the designated grade effective the day before placement on the Retired List or TDRL regardless of cut-off scores, sequence number, or position availability. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he should be promoted to SGT effective 1 May 2013 under the provisions of MILPER Message 13-106. 2. HRC stated his APFT expired in September 2012 thereby placing him in a non-promotable status as of October 2012. However, paragraph 1-10 of Army Regulation 600-8-19 does not list an expired APFT or APFT failure as a condition placing a Soldier in a non-promotable status. Paragraph 1-11 refers to flagging action such as APFT and the effective date of rank once the flag has been lifted. Therefore, he should not be removed from the promotion recommended list but should have been flagged effective October 2012 for an expired APFT. 3. The exact date he was referred to the DES is not known. There is no evidence available and he has not provided any evidence that shows his medical status from October 2012 until the date he was referred to an MEB. He did not provide any evidence of his APFT scores or whether he was able to complete any portion of the APFT. He stated his APFT was updated effective 3 June 2013; however, he did not provide his updated APFT card. 4. He provided a permanent profile dated 17 May 2013; however, the cutoff scores for 1 May 2013 for SGT in his MOS were published on 18 April 2013. 5. In view of the above, there is insufficient evidence to provide relief in this case. 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) AR20130016992 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130016992 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1