ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20160019344 APPLICANT REQUESTS: correction of his DA Form 1059 (Service School Academic Evaluation Report (AER)) for military occupational specialty (MOS) 38B1O (Civil Affairs). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 3349 (Physical Profile), dated 20 December 2006 * Memorandum, Headquarters, 5th Battalion (Civil Affairs), 3rd Brigade (Combat Support), 98th Division (Institutional Training), dated 19 January 2007, subject: Notification of Release * Memorandum, Headquarters, 5th Battalion (Civil Affairs), 3rd Brigade (Combat Support), 98th Division (Institutional Training), dated 19 January 2007, subject: (Applicant), 38B MOS-Training (MOS-T) Course 001-2007 Release * Memorandum, Headquarters, 5th Battalion (Civil Affairs), 3rd Brigade (Combat Support), 98th Division (Institutional Training), dated 19 January 2007, subject: 38B MOS-T Course Class 001-2007 * DA Form 1059, dated 19 January 2007 * Letter to Congressional Representative, dated 19 May 2016 * Letter from Congressional Representative, dated 16 June 2016 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * there was no justifiable legal reason for his dismissal from the MOS 38B course pursuant to Army Regulation 350-1 (Army Training and Leader Development), paragraph 3-18b(5) (Student Dismissal) * he had no active physical profile rating limitations on 19 January 2007 * his temporary 24-hour physical profile rating expired on 20 December 2006 * his chain of command failed him * his executive officer would not listen to reason and was not available for an appeal * he has been trying for years to correct his AER and was just recently given a DD Form 149 3. On 5 November 2006 the applicant, a U.S. Army Soldier, was mobilized in support of Operation Iraqi Freedom. 4. On 20 December 2006, he was assigned a temporary physical profile rating of "3" under the physical capacity and stamina factor for elevated blood sugars (type II diabetes mellitus) with an expiration date of 20 December 2006. The examining physician recommended his release from training; consideration by a medical evaluation board (MEB)/physical evaluation board (PEB) in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-11(d); and no consumption of Meals, Ready-to-Eat. 5. On 3 January 2007, he reported to 38B MOS-T Course Class 001-2007 for MOS reclassification in support of mobilization. 6. On 19 January 2007, he was notified of his release from training due to his temporary physical profile rating in accordance with Army Regulation 350-1, paragraph 3-18b(5). 7. He provided a copy of his referred AER, dated 19 January 2007. The AER is not filed in the applicant's Official Military Personnel File (OMPF). The AER he provided shows the following entries: a. In item 9 (This Is a Referred Report, Do You Wish to Make Comments?), the rater checked the block indicating the report as being a referred report and the applicant checked "YES" to indicate he wished to make comments. b. In item 11 (Performance Summary), the rater marked "Failed to Achieve Course Standards." c. In item 12 (Demonstrated Abilities), the rater marked "Unsatisfactory" for Contribution to Group Work. d. In item 13 (Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training?), the rater marked "NO." e. In item 14 (Comments), the rater stated, "Failure to meet course standards in accordance with AR [Army Regulation] 350-1, Army Training & Leader Development paragraph 3-11, item a, Physical Profile is such that continuance in the course is not appropriate and paragraph 3-18, item b5, illness injury (as determined by a physician) or added physical profile limitation. Demonstrated low initiative. Exerted the least amount of effort possible in contribution to group work." f. Item 15 (Authentication) shows the rater and reviewing officer signed the form on 19 January 2007. The applicant's signature is not dated. 8. His records contain a Standard Form 600 (Chronological Record of Medical Care), dated 29 January 2007, showing he was diagnosed diabetes mellitus type II, uncomplicated, uncontrolled. The physician noted the applicant required a permanent physical profile rating of "3" for his diabetes mellitus II, requiring medication, and would require an MEB determination to remain in the military. 9. He was assigned a permanent physical profile rating of "3" under the physical capacity and stamina factor for diabetes mellitus on 12 February 2007. The profiling officer indicated the applicant needed an MEB/PEB determination and his medical condition prevented him from deployment. 10. He was honorably released from active duty on 22 March 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his narrative reason for separation as completion of required active service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant a military record correction. The Board concluded that based upon AR 350-1 which states Soldiers with temporary physical profile ratings that prevent full participation in a temporary duty course will be removed from school attendance consideration by their immediate commander until the temporary physical profile rating is removed. The Board found that, based upon the applicant showing up for a temporary duty course on a temporary profile, the cadre at that course took the appropriate action in accordance with regulatory guidance. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501, in effect at the time, governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a. Paragraph 3-11 (Endocrine and Metabolic Disorders) prescribed causes for referral to an Medical Evaluation Board include diabetes mellitus when proven to require insulin or oral medication for control. b. Chapter 7 prescribed a system for classifying individuals according to functional abilities. The functions are considered under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, is evaluated in determining the numerical designation "1," "2," "3," or "4." An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness. c. Paragraph 7-4 (Temporary Versus Permanent Profiles) provided that a temporary profile rating is assigned if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity. Temporary profiles will be medically evaluated at least once every 3 months. Temporary profiles should specify an expiration date. If the physical profile rating is permanent, the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to an MEB. 3. Army Regulation 350-1 consolidated policy and guidance for Army training and leader development and supports a full-spectrum, force projection, expeditionary Army. a. Paragraph 3-11 (Physical Profiles) provides that Soldiers with temporary physical profile ratings that prevent full participation in a temporary duty course will be removed from school attendance consideration by their immediate commander until the temporary physical profile rating is removed. Soldiers assigned temporary or permanent physical profile limitations after enrolling in resident training courses will be evaluated by school commandants and commanders for continued enrollment. Soldiers who are unable to meet graduation requirements will be returned to their units and may, if eligible, be enrolled in a later course. b. Paragraph 3-18 (Student Dismissal) provides that students may be considered for dismissal from courses for an illness or injury (as determined by a physician), or physical profile limitation. ABCMR Record of Proceedings (cont) AR20160019344 0 4 1