BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150003936 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, in effect, correction of his military records to show he was promoted to sergeant (SGT)/E-5 upon his separation by reason of physical disability. 2. The applicant states, in effect: * his unit laterally demoted him from corporal (CPL)/E-4 to specialist (SPC)/E-4, and removed his promotable status when he entered the Integrated Disability Evaluation System (IDES) process * he was told this occurred because he did not take an Army Physical Fitness Test (APFT), even though his profile showed he was not able to take an APFT * after talking with his physical evaluation board liaison officer (PEBLO) and Soldier and Family Assistance Center (SFAC) representative, he decided to submit this application to the Board * he has provided documentation which should support his contention that his promotable status was improperly withdrawn, and that he should have been promoted to SGT/E-5 upon separation 3. The applicant provides: * DA Form 4187 (Personnel Action) * Enlisted Record Brief CONSIDERATION OF EVIDENCE: 1. The applicant's records show, after prior enlisted service in the U.S. Army Reserve, he enlisted in the Regular Army on 27 August 2009, entering in the rank/grade of SPC/E-4. 2. On or about January 2013, he was placed on the Command List Integration (CLI) to the SGT/E-5 promotion list with a score of 39. 3. On 27 March 2014, the applicant was issued a DA Form 3349 (Physical Profile) showing a permanent level "3" rating for lower extremities. Although the form indicated he was not able to perform any of the events for the APFT, alternate events were permitted (an APFT Walk and an APFT Bike) . The form also showed he required referral to a medical evaluation board (MEB). His rank is stated as SPC. 4. On 20 May 2014, a Narrative Summary was completed by a MEB physician indicating one medical condition had been identified as not meeting medical retention standards. On 23 May 2014, using a DA Form 3947 (MEB Proceedings), an MEB affirmed the applicant failed medical retention standards for that one medical condition. His rank/grade is listed as SPC/E-4. 5. On 30 September 2014, a physical evaluation board (PEB) determined he was unfit for continued military service by reason of physical disability. a. Using a DA Form 199 (Informal PEB Proceedings), the PEB recommended a disability rating of 20 percent and separation with severance pay. This form shows his rank as SPC. b. On 2 October 2014, he concurred with the PEB's recommendation and waived his right to a formal hearing. He also waived his right to have a reconsideration of his disability rating done by the Department of Veterans Affairs. 6. Orders 298-0004, dated 25 October 2014, issued by Headquarters, Third Infantry Division and Fort Stewart, reassigned him to the U.S. Army transition point with a reporting date of 27 December 2013. His rank appears as SPC. In the additional instruction it states: * percentage of disability - 20 percent * severance pay is authorized in pay grade E-4 based on 6 years of service 7. He was honorably discharged on 27 December 2014. His DD Form 214 shows he completed 5 years, 4 months, and 1 day of net active service this period , with 5 months and 27 days of prior active service. His rank at separation is shown as SPC/E-4. The separation authority is Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures). The narrative reason is listed as disability, severance pay, combat zone (enhanced). 8. There is no indication in either his IDES documentation or in his official military personnel file (OMPF), that he was on the SGT/E-5 promotion recommended list at the time of his separation. Additionally, his OMPF also does not indicate he was flagged under the provisions of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)), or otherwise in a status which would have precluded him from being recommended for promotion. 9. The Enlisted Personnel Management Division (EPMD) within the U.S. Army Human Resources Command (HRC) provided a Promotion Point History Report for the applicant. It shows the applicant was on the SGT/E-5 promotion list from January 2013 to October 2013 with 39 promotion points. An entry for November 2013 shows no promotion points. According to EPMD, the applicant was shown as having an outdated APFT (554 days old) and, as a result, was removed from the list. 10. The applicant provides: a. DA Form 4187, signed by Captain CAS, Commander, on 12 July 2013, advancing the applicant to the rank of CPL effective 12 July 2013. b. ERB, dated 25 February 2013, showing he was promoted to SPC effective 27 August 2009. Additionally, there is an entry which indicates he had 39 promotion points effective January 2013. 11. Army Regulation 600-8-19 (Personnel General - Enlisted Promotions and Reductions) prescribes policies and procedures for enlisted promotions and reductions. It states, in pertinent part: a. Each month, eligible Soldiers will be automatically integrated (command list integration (CLI)) onto the SGT promotion recommended list. b. All Soldiers who are on the promotion list as a result of CLI must have a current APFT or have an exception submitted. They will reside on the recommended list with 39 points for SGT . No additional promotion points, regardless of qualifications or achievements, are granted unless the Soldier goes through the formal board process. 12. The Active Component Frequently Asked Questions (FAQ) for Semi-Centralized Promotions SGT/SSG states, with regard to CLI, Soldiers on the promotion recommended list for SGT have a score of 39 because this is one point less than the lowest point on the APFT table so they can be easily be identified. HRC then ensures Soldiers who have been boarded are promoted before a CLI promotion takes place. Soldiers must have a current record passing APFT . 13. Military Personnel (MILPER) Message Number 13-106, issued 18 April 2013, was issued to help clarify paragraph 1-20 (Promotion of Soldiers pending referral to a military occupational specialty (MOS)/medical retention board, medical evaluation board, or PEB), chapter 1 (Introduction), Army Regulation 600-8-19.States, in pertinent part: a. Soldiers who are pending a medical fitness determination 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. Soldiers previously conditionally promoted who are unable to meet the conditions of their promotion as a result in a finding of unfit by the DES will not be subject to administrative reduction to retain promotable status. c. While in the DES, Soldiers will not be required to maintain their APFT or weapons qualification for promotion purposes. d. Per the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the Soldier's separation date. 11. Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. a. Chapter 7 provides guidance for the physical profile serial system The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric b. Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitation * "4" indicates defects of such severity military duty performance is -drastically limited c. The DA Form 3349 is used to record both permanent and temporary profiles. A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander. All permanent 3 or 4 profiles are reviewed by a MEB physician or physician approval authority. DISCUSSION AND CONCLUSIONS: 1. The applicant requests, in effect, correction of his military records to show he was promoted to SGT/E-5 upon his separation by reason of physical disability. He asserts his lateral appointment to CPL as well as his ability to be recommended for promotion to SGT/E-5 were improperly taken away based upon his referral into the IDES process. 2. The documents he provides shows: a. He was laterally appointed to CPL effective 12 July 2013. Evidently, at some unknown point, he was made a SPC again. Despite the fact his lateral appointment to CPL was withdrawn, this does not necessarily affirm he was precluded from being recommended for promotion to SGT/E-5. b. On his ERB, there is an indication he was added to the SGT/E-5 promotion recommended list as a result of CLI. He apparently was removed from the promotion list but he offers no evidence which would clarify as to when or why he was removed. 3. According to HRC, the applicant was on the SGT/E-5 promotion recommended list until November 2013. The apparent reason he was removed was because his APFT was 554 days old. To remain on the promotion recommended list, Soldiers must have a current passing APFT. 4. The applicant asserts he could not take an APFT, however, his DA Form 3349, dated 27 March 2014, shows he was able to take an alternative APFT. There is no evidence he took an alternative APFT, but if he had he would likely have remained in an eligible status. 5. Based upon the foregoing, there appears to be insufficient evidence to support granting the applicant's request. 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) AR20150003936 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003936 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1