MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 October 1999                   
	DOCKET NUMBER:   AR1999030870

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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:  That he be promoted to Sergeant First Class (SFC), E-7.

APPLICANT STATES:  That he was denied the opportunity of attending further Non-Commissioned Officer (NCO) schooling.  He had been selected for promotion and Department of the Army (DA) withheld his promotion under discriminatory circumstances for being HIV-positive.  Servicemembers are being told they are nondeployable for medical reasons, but Army Regulation 600-110 says that they are to be stabilized using the code B.  Code C is for medical reasons.  He also feels he was identified for promotion because in the spring of 1994 a DA board contacted Fort Meade MD and requested a complete-the-record non-commissioned officer evaluation report (NCO-ER).  This basically meant that he had or was seriously being considered for promotion.

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

He enlisted in the Regular Army on 20 October 1975.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 02D (French Horn Player).  In October 1977, the applicant had accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for possessing some amount of marijuana.  He appealed his punishment but his appeal was denied.  This Article 15 is on the performance fiche of his Official Military Personnel File.  He was discharged on 1 June 1981 upon completing his required term of service.  

The applicant reenlisted on 22 January 1982 in pay grade E-4 for MOS 02D.  He was promoted to Specialist Five, E-5 effective 1 September 1983.

The applicant’s EER for the period ending March 1984 included such comments as “He does not keep everyone appraised of his status when ill…above behavior is not conducive to earning respect…does not impress one as outstanding among his peers.”  “He does not always put military priorities first.”  He refused to sign this EER but there is no evidence he appealed it.  

His Academic Evaluation Report (AER) ending 29 June 1984, upon completing the Primary Leadership Development Course, included the statements “…did an acceptable job as a student and achieved course standards…with more seasoning and experience as a leader, SM will make a fine noncommissioned officer.”

His EER for the period ending October 1984 included such comments as “…he has demonstrated a keen sense of responsibility…musical performance is rated top notch…He needs to be placed in more direct supervisory positions in order to gain experience.”

He was promoted to Staff Sergeant, E-6 effective 1 January 1985.  

His EERs for the periods ending May 1985, February 1986, December 1986, and December 1987 included such comments as “…has displayed many of the attributes commensurate with his grade…With proper guidance and training he has the ability to be a superior senior noncommissioned officer,” “…is an excellent French Horn Player.  He leads the section by example.  He has unlimited potential both as a leader and a musician,“  “…is an excellent soldier/musician…” and “…this extremely conscientious NCO…”  Comments on his potential included “…has unlimited potential both as a leader and a musician,”  “…unlimited potential for positions of greater responsibility…,” and “…be selected for attendance at the Advanced NCO course and upon completion be promoted to the rank of Sergeant First Class.  His potential as an NCO is unlimited.”

Apparently, in March 1988, the applicant was discovered to be HIV positive.  In April 1988, he contends he was notified that he was selected to attend BNCOC (with an unknown class date).  On an unknown date, apparently his Branch and commander decided he would not attend because of his diagnosis.

His EER for the period ending May 1988 included such comments as “…continues to be an excellent soldier, NCO and musician.”  Comments on his potential included “…be selected to attend…Advanced NCO course and upon completion be promoted to the rank of SFC.  His potential as an NCO is unlimited.”

On 27 July 1988, temporary duty orders were published for the applicant to travel to Walter Reed Army Medical Center (WRAMC) for a medical evaluation.  On   10 August 1988, he was assigned to the Medical Holding Company, WRAMC, pending his Physical Evaluation Board (PEB).  On 6 September 1988, a medical evaluation board (MEB), diagnosed him with HIV Disease, Stage WR-2 and major depression, depressed type and referred him to a PEB.  On 16 September 1988, a PEB found him unfit for duty for his diagnosed HIV Disease and major depression and recommended his placement on the TDRL with a disability rating of 50 percent (30 percent each diagnosis).  He agreed with the board’s findings and recommendation.  He was placed on the TDRL on 3 November 1988.  

(The applicant’s records had been considered by the October 1988 SFC promotion selection board.)

On 16 November 1989, a TDRL reevaluation found the applicant fit for duty.  The Narrative Summary (Clinical Resume) stated “…the patient is currently fit for military duty, he however has an underlying fatal infection with the HIV virus.  It is recommended that the patient be allowed to choose between permanent retirement to deal with …or that he be returned to active duty for as long…”
The applicant may have disagreed with this recommendation because on            3 January 1990 the Washington PEB recommended he be retained on the TDRL.

On or about 25 March 1991, the applicant was again found fit for duty during a TDRL reevaluation.  He did not concur but waived a formal hearing and submitted a written appeal.  His appeal is not available.  On an unknown date, a Clinical Record stated “…the patient is currently fit for active duty.  It is recommended that the patient be allowed to choose between permanent retirement to deal with …or that he be returned to active duty as long…”

On 6 August 1991, the applicant was removed from the TDRL.  On 4 November 1991, he reenlisted in the Regular Army and was assigned to Fort Carson, CO with a report date of 19 November 1991.  

His NCO-ER for the period ending October 1992 shows a non-rated code of “B,” meaning he had a break in service.  (It should have reflected code “D,” meaning he had been on the TDRL.)  Out of five categories of NCO values and responsibilities, with possible ratings of “excellence,” “success,” “needs some improvement” or “needs much improvement,” his rater gave him one “excellence” and four “success” ratings.  His overall potential, with possible ratings from “among the best,” “fully capable” and “marginal” was rated as “fully capable.”  His NCO-ER for the period ending June 1993 shows his rater gave him five “success” ratings and a potential rating of “among the best.”

The applicant attended the BNCOC from 19 July – 29 September 1993.  Comments on his AER included “Met all course standards,” “Passed all training annexes without retest,” and “Performs the tasks of his grade, should receive assignments to further develop skills learned during this course, consider for ANCOC when eligible.”

His NCO-ERs for the periods ending March 1994 shows his rater gave him five “success” ratings and a potential rating of “among the best;” March 1995 one “excellence” and four “success” ratings and a potential rating of “among the best;” March 1996 one “excellence” and four “success” ratings and a potential rating of “among the best;” March 1997 two “excellence” and three “success” ratings and a potential rating of “among the best;” March 1998, three “excellence” and two “success” ratings and a potential rating of “among the best;” and March 1999, one “excellence” and four “success” ratings and a potential rating of “among the best.”

The applicant requested Standby Advisory Board (STAB) promotion consideration and his records were so considered by a STAB for promotion consideration to SFC for the October 1989, October 1990, October 1991 SFC promotion boards; however, he was not recommended for promotion.  He was not eligible for consideration by the January 1993 SFC promotion board because he was not BNCOC qualified.  He was considered by the October 1993 board based on his graduation from BNCOC; however, he was not selected for promotion.  (Included with his request was a memorandum from him to the president of the promotion board.  In the memorandum he stated “…it was discovered that I was HIV positive…”)

In March 1997, the applicant submitted an Inspector General (IG) Action Request concerning his failure to be promoted by the Enlisted STAB (and other concerns). In responding to the IG investigation, his senior career advisor at the U. S. Total Army Personnel Command (PERSCOM) noted that the applicant’s last three NCO-ERs showed he had not taken the initiative to obtain positions at the SFC level; the “excellence” bullets on those NCO-ERs were not quantitative, thus weakening them in comparison with his peers; he did not have the additional specialty identifier C1 (Major Command Band Qualified) which is a consideration in the promotion process (17 of the 22 current selectees had a C1); he had only one year of college as compared to his peers who average between two and six years; and his career progression is limited due to his non-deployable status.  

The IG responded to the applicant in September 1997.  The IG noted that there was no break of confidentiality regarding his health records and TDRL documentation since his commander and specifically designated Military Personnel Office personnel must be made aware of his status in order in ensure he was never stationed overseas.  His confidentiality was not violated based on the Assignment Eligibility and Availability (AEA) code of B that indicates he was nondeployable because that code is used for a variety of reasons not associated with his health condition.  The decision not to allow him to attend BNCOC was based on the commander’s appropriate guidance that was available at the time.
It was left to the commander’s discretion to allow soldiers to receive further NCOES training who were identified as being HTLV-III antibody positive.  The STAB action for the years 1989, 1990 and 1991 were properly conducted and were not just a formality.  The IG recommended he apply to this Board for relief.

Army Regulation 600-110, effective 11 April 1988 and revised 23 May 1994, prescribes Army policy and responsibilities on HIV testing and establishes procedures for administration of personnel infected with HIV.  In pertinent parts, it states that HIV-positive active duty soldiers will be limited to duty within the continental United States (later changed to duty within the United States.  Also added later “For readiness including…emergency deployment readiness exercises and mobilization purposes, soldiers are considered deployable if they have a negative HIV antibody test recorded within 24 months of scheduled deployment…”).  Soldiers infected with HIV who demonstrate progressive clinical illness or immunological deficiency may not meet medical retention standards and will be processed for physical disability (later changed to “rapidly” progressive…).  All information regarding HIV testing results will be handled in a manner to protect the individual’s confidentiality while providing information consistent with medical and administrative requirements on a need-to-know basis.  The original regulation required an HIV-positive soldier to be medically profiled, the DA Form 3349 (Physical Profile) to contain such minimum entries as:  item 1 to designate the medical condition as “retrovirus infection,” item 2 to contain a permanent 3 under the “P” factor in the physical profile and item 9 to contain the remark “No vaccination with live virus vaccines.”  (The revised version states HIV-infected soldiers do not require a change in their physical profile solely because they are HIV infected.)  The Enlisted Master File will initially be annotated with AEA code V to stabilize the enlisted soldier for 12 months at his CONUS installation.  After 12 months AEA code B will be submitted to indicate nondeployability.  Personnel who are HIV positive and are determined to be fit for duty will continue to be eligible for military professional development schooling such as NCOES.  

Army Regulation 614-200 provides policies for selection of enlisted personnel for assignment.  In pertinent part, it states that a soldier’s eligibility and availability for reassignment will be shown by an AEA code.  It will be awarded promptly upon arrival at a unit and updated as required.  When two or more AEA codes apply, the AEA code with the longest period of stabilization will be reported.  AEA code B is used for soldiers being considered for elimination or if assignment precludes selection for overseas service for an unspecified period of time.  AEA code C is used for soldiers temporarily ineligible for an overseas assignment for medical or other reasons.  AEA code V is used for soldiers stabilized under the provisions of Army Regulation 614-5 or other DA policy.

Army Regulation 623-205 sets the policies and procedures governing the NCOER System.  In pertinent part, it states that nonrated period reason code D indicates TDRL.  For a TDRL status of any duration, the beginning month of the next NCO-ER will be the month following the ending month of the last NCO-ER.

Conversation between an analyst with the Board and the Physical Disability Agency on 6 October 1999 clarified the meaning of the wording used on TDRL reevaluations when a soldier is found to be fit for duty.  The wording “allowed to choose between permanent retirement…returned to active duty…” is misleading because “permanent retirement” only means a soldier can choose not to return to active duty, but they will not get any benefits.  

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

1.  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 the aforementioned requirement.
2.  The Board disagrees with the applicant’s contention that he was denied the opportunity to attending BNCOC because of discrimination due to his             HIV-positive status.  The regulation states that such personnel who are determined to be fit for duty will be eligible for military professional development schooling.  The applicant states he was notified in April 1988 that he was selected to attend BNCOC.  Only three months later, on 27 July 1988, he was sent to WRAMC for a medical evaluation presumably because local medical officials determined he may not have been fit for duty.  This determination was borne out when the PEB found him unfit for duty and placed him on the TDRL, not only for a diagnosis of HIV Disease but also for a diagnosis of depression.  The disability rating for depression was 30 percent; that alone would have been enough to have him placed on the TDRL.  Therefore, the Board concludes his commander made a valid decision not to send him to BNCOC.

3.  The Board disagrees with the applicant’s contention that he had been selected for promotion and DA withheld his promotion under discriminatory circumstances for being HIV-positive.  There is no evidence of record to show the applicant was ever selected for promotion.  On the contrary, there is evidence to show that he was considered for promotion but not selected.  His contention that a DA board requesting a complete-the-record NCO-ER meant that he was being considered for promotion is correct; however, he was being considered along with hundreds of other Staff Sergeants in the zone of consideration for promotion.  “Consideration” does not equal “selection.”

4.  The Board has reviewed the applicant’s OMPF and concludes that he was no more than an average soldier.  He has one Article 15 on his performance fiche.  Although it was 11 years old at the time of the 1988 promotion board, the Board and presumably the promotion board noted that he had taken no initiative to have it removed as having served its purpose.  (His records, even though he had not signed a promotion packet, would have been considered by this board because on the convening date he was still on active duty).  At least one EER as an E-5 contained several negative comments.  His EERs prior to his placement on the TDRL, while containing the maximum numerical score, contained standard comments.  His EERs as an E-6 after his return to active duty showed more “success” than “excellence” ratings.  The erroneous nonrated code of “B” on his NCO-ER ending October 1992 was a minor administrative error that does not impact on the report’s ratings or comments.

5.  The Board disagrees with the applicant’s contention that AEA code B is prejudicial to HIV-positive soldiers.  AEA code C is inappropriate; although it is used for medical reasons, it is used for temporary medical reasons.  AEA code B is used when a member is permanently nondeployable, as HIV-positive soldiers are.  Such a code would not have given any indication to a promotion board that he was HIV-positive, nor would it have given a board any indication that he was being considered for elimination (another use of AEA code B) since there was no associated flag on his records.  (The Board also notes that it was the applicant who brought his HIV-positive status to the attention of the STAB.)

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

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

__fkm___  __jhk___  ___bje__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999030870	
SUFFIX		
RECON		
DATE BOARDED	19991020	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.