PROCEEDINGS

	IN THE CASE OF:           

	BOARD DATE:               1 March 2000                 
	DOCKET NUMBER:      AR1999031821

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John Saputo		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, in effect, reconsideration of the earlier decision rendered by this Board (Army Board for Correction of Military Records (ABCMR) denying him promotion reconsideration.  He specifically requests, based on material error, that he be reconsidered for promotion to master sergeant based on the criteria used by the 1998 Master Sergeant Promotion Board (MSG-PB).

3.  The applicant states , in effect, that the medical profile contained in his official military personnel file (OMPF), at the time it was reviewed by the 1998 MSG-PB, was incorrect.  He also contends that the earlier decision of the ABCMR was incorrect, given it was rendered on the false assumption that he requested reconsideration based on his being non-selected by the 1999 MSG-PB.  When instead, he was requesting promotion reconsideration because of his not being 
selected by the 1998 MSG-PB.  This request was and is being made based on the material error of his records, based on the fact that the medical profile contained in his OMPF, which was reviewed by the 1998 MSG-PB, was in error.  He has enclosed a chronological list of events, which he contends supports his request for promotion reconsideration.

4.  The applicant’s military records show that he entered the Regular Army on 
29 September 1977 and has continuously served on active duty until the present time.  He currently holds the rank of sergeant first class/E-7 and performs duties in military occupational specialty (MOS) 82C (Land Surveyor).  

5.  In October 1997, the applicant began experiencing problems running because of shortness of breath, nausea, dizziness, and chest pains.  He was examined by a local medical doctor and issued a temporary profile of 4 (P4) pending an evaluation at an Army Medical Center by a cardiologist.  The profile was based on the applicant suffering from moderate to severe aortic stenosis pre-syncopal symptoms with exertion.  It further indicated that he was not to participate in mandatory physical training and he was not allowed to run, jump, march, or to lift objects in excess of 25 pounds.  This temporary profile did allow the applicant to walk at his own pace and distance and to stretch at his own pace; however, it exempted him from taking the Army Physical Fitness Test (APFT).  At this time the applicant was referred to a cardiologist for further evaluation.  

6.  On 10 November 1997, the applicant reviewed his OMPF and signed a 
DA Form 2-1 (Qualification Record), which was submitted to the 1998 MSG-PB for their consideration.  This record contained a permanent entry in block 
4 (assignment considerations), which spelled out the applicant’s medical condition and physical profile as outlined in the preceding paragraph.  This was the qualification record that was forwarded to the 1998 MSG-PB for their review and consideration.

7.  In December 1997, the applicant was evaluated by a cardiologist who indicated he should remain on a temporary profile and return for further evaluation in 3 to 4 months.  The cardiologist also recommended that the applicant be considered by the medical evaluation board (MEB) process in the near future.  On 16 December 1997, the MEB process was started on the applicant based on his heart condition and he was scheduled for further follow-up medical evaluations.

8.  In February 1998, the MSG-PB convened to consider candidates for promotion, the applicant was among those considered by this board.  The last Noncommissioned Officer Evaluation Report (NCOER) completed on the applicant, prior to the convening of the promotion board, covered the period August 1996 to July 1997.  In Part IV (Values/NCO Responsibilities), block 
C (Physical Fitness & Military Bearing), the applicant’s rating was “excellence”.  This block also contained verification that he had passed the APFT in March 1997, and the rater commented specifically that the applicant scored 273 and 294 respectively, on the semi-annual APFT’s he took during the rating period. 

9.  On 3 April 1998, the 1998 MSG-PB results were published and the applicant was identified as being considered for but not selected for promotion.  The total selection rate for soldier’s in the applicant’s career management field was 
15.7 percent.  

10.  On 22 April 1998, the applicant received a change of rater NCOER for the period August 1997 to February 1998.  This report documented that he took and passed the APFT in October 1997, with a score of 281.  This report was not part of the record considered by the 1998 MSG-PB.  

11.  In May, June, and July 1998, the applicant attended follow-up medical evaluations and it was July before the MEB process was again pursued upon the request of the attending physician.  The MEB process began again in August 1998.  In November 1998, the MEB convened and recommended that the applicant’s case be referred to the physical evaluation board (PEB).  This referral was based on a diagnosis of valvular heart disease with moderate to severe aortic stenosis, which rendered the applicant unable to perform many duties required of his MOS, which included physical training (PT).  

12.  In February 1999, the PEB determined that the applicant was fit for duty by presumption.  This was based on the applicant being within 12 months of his retention control point (RCP), of 29 September 1999, at the time he entered the disability evaluation system (DES) on 6 November 1996.  This 12 month period prior to reaching RCP is known as the presumptive period, and entry into the DES during this period carries with it a presumption of fitness:  if the evidence at the time he entered the DES shows that during the presumptive period; he was performing his duties befitting his experience; and there was no serious deterioration of the previously diagnosed condition, and he had not overcome this presumption of fitness.

13.  The applicant rebutted the findings of the PEB and argued that he should have been evaluated under the MEB process well before his RCP became a factor in the process.  In February 1999, the PEB president, a colonel, responded to the applicant’s rebuttal.  In this response the PEB president indicated that the applicant’s rebuttal was carefully considered; however, it was concluded that the evidence presented did not change the original PEB findings and recommendations and on 10 March 1999, the PEB findings were approved. 

14.  In May of 1999, the applicant was issued a final permanent Physical Profile Form (DA Form 3349) which indicated that he was physically capable of taking a modified APFT, which consisted of the normal push-up and sit-up portions of the test, but limited him to walking instead of taking the two mile run portion of the APFT.  This was the final permanent profile issued to the applicant after he completed medical treatment for his heart condition.

15.  On 30 August 1999, a panel of the ABCMR denied the applicant’s petition to remove documents pertaining to his physical profile from his records.  The Board further concluded that promotion reconsideration was not warranted because it was unlikely that medical documentation relating to his physical disability evaluation was a factor in his non-selection for promotion by the 1999 MSG-PB.  

16.  Guidance from the Army’s Personnel Command, states that the basic concept of Army Centralized Promotion Boards is to promote those individuals to sergeant first class, master sergeant, and sergeant major who compete equally with their contemporaries and are found to be best qualified.  Promotion is not intended to be a reward for long honorable service in the present rank, but instead, is based on demonstrated performance in present and lower ranks and potential ability at the higher rank. 

17.  The guidance further indicates that promotion boards consider the soldier's performance record in the official file and a copy of the personnel qualification record.  The promotion board's analysis of the file includes a careful evaluation of many factors, which include the following:  scope and variety of assignments; estimate of potential (as reflected on evaluations) expected of an NCO at the next higher grade; trends in efficiency; length of service and maturity; awards, decorations and commendations; education, both military and civilian; moral standards; integrity and character; and general physical condition. 

18.  Army Regulation 600-8-19, paragraph 4-16 and 4-18, provides the policies and procedures for consideration by a Stand-By Advisory Board (STAB).  The STAB is not a selection or promotion board but an advisory body convened to make recommendations on individual cases regarding promotion or removal from a current recommended list.  The STAB considers records from the primary and secondary zones omitted by a regular board and those records of soldiers from a primary zone that were not properly constituted due to a material error when reviewed by a regular board or where official changes were made in records.  

19.  Army Regulation 600-8-104 prescribes the policy and procedure governing the operating tasks and steps governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  Table 5-2 contains the instructions for recording entries on the DA Form 2-1.  The instructions pertaining to block 4 (assignment considerations) state, in pertinent part, that a brief statement will be entered explaining the condition pertaining to any medical condition or physical defect; however, it specifies that temporary limitations will be entered with a pencil and erased upon termination.  

CONCLUSIONS:

1.  The Board, after carefully examining he evidence record, concurs with the earlier findings and conclusions of the ABCMR, that the applicant was properly and equitably evaluated by the DES, and that the ultimate result of the PEB process was correct.  However, this Board did find that the previous panel decision to deny promotion reconsideration was based solely on the results of the 1999 MSG-PB; however, the applicant was not considered by this promotion board and was in fact requesting reconsideration by the 1998 MSG-PB.  

2.  The Board determined that the permanent entry in block 4 (assignment considerations) of the applicant’s DA Form 2-1, which was reviewed by the 
1998 MSG-PB, was in error.  By regulation, the entry in block 4, if necessary at all, should have been temporary and recorded in pencil.  Because physical condition is one of the identified factors considered by promotion boards in analyzing files, this permanent entry in block 4, identifying the applicant’s physical condition, could have been interpreted as permanent in nature by the promotion board and may have prejudiced their selection decision on the applicant.

3.  Therefore, in the interest of justice and equity, the Board concluded it would be appropriate to have the applicant considered for promotion to master sergeant by a STAB, using the criteria of the 1998 MSG-PB.  This decision is primarily based on of the Board’s conclusion that the permanent entry contained in block 
4 of the applicant’s DA Form 2-1, reviewed by the 1998 MSG-PB, was in error and should not have been made a permanent part of the record at that time.  

4.  Additionally, it is clear from the medical evidence that the applicant’s physical condition appeared more serious and limiting on the DA Form 2-1 which was reviewed by the 1998 MSG-PB.  This is supported by the fact that after obtaining medical treatment and completing the medical evaluation process, in May 1999, the applicant was issued a permanent profile which allowed him to take a modified APFT and was much less restrictive than appeared on the qualification record in question.  The Board finds that correction of this error meets the regulatory requirement calling for a STAB when official changes were made in records.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  removing the permanent entry pertaining to the physical condition of the individual concerned from block 4 of his DA Form 2-1; and 

b.  referring the corrected records of the individual concerned to a STAB for promotion consideration under the criteria used by the 1998 MSG-PB.

2.  That if selected for promotion by the STAB, the individual concerned be promoted with an appropriate date of rank and be provided all due back pay and allowances that result.  

BOARD VOTE:  

__js____  __mmd___  __gdp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____George D. Paxson____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031827	
SUFFIX		
RECON	1999/08/18	
DATE BOARDED	2000/03/01	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A 	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 310	131.0000	
2.		
3.		
4.		
5.		
6.