ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20170000517 APPLICANT REQUESTS: to be placed on the Temporary Disability Retired List (TDRL) on 28 March 2016 as a Sergeant (SGT)/ E-5 instead of Specialist (SPC)/ E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Evaluation Board Narrative Summary * Orders 005-0002 * Medical Certificate x3 * Department of the Army Memorandum Subject: Request for Rating: SPC M A. N * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states in effect: a. He suffered wounds while deployed in Afghanistan on 27 September 2001. He suffered from lower back, feet, neck and knee pain, Vasovagal Syncope, headaches, Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). When he was stationed at Camp Carroll, Korea in 2013 he was in a promotable status, awaiting promotion points. After four months, he continued to experience problems related to his injuries; however he thought he was experiencing lightheadedness, dizzy spells and fainting from dehydration. b. In spite of his medical problems, he continued to pass the Army Physical Fitness Test (APFT). His conditions continued to worsen and he was placed on several physical profiles preventing him from maintaining his workout regiment. He gained weight, failed to adhere to the Army height and weight standards and was placed in the overweight program, losing his promotable status. He made improvements regarding his weight, while continuously having fainting spells. He managed to get off the overweight program, but was placed back in it when he regained the weight due to his medical condition worsening and being placed on bed rest numerous times. Once he was placed back in the overweight program, he was informed he would be separated for not meeting Army height and weight standards. c. During his separation physical, the attending physician informed the applicant about the significance of his medical conditions. He reported some of the applicant’s medical conditions made the applicant unfit for service, and suggested the applicant fight for medical retirement. After the separation physical was complete, it was determined the applicant had Vasovagal Syncope and other conditions possibly making him unfit for continued military service. During the separation board, the applicant was informed if his medical conditions were proven the overweight chapter separation would be dropped. d. On 13 September 2015, it was discovered the applicant’s medical conditions made him unfit for service and he was placed on the TDRL on 28 March 2016. As a result, he is requesting to be placed on the TDRL as a SGT rather than a SPC. He is not requesting back pay, he worked hard to be promoted to SGT and not obtaining it due to his medical conditions hurts a lot. 2. A review of the applicant’s records show the following: a. On 5 February 2008, he enlisted in the United States Army Reserve (USAR). b. On 4 March 2009, he was placed on Temporary Change of Station (TCS) orders in support of Operation Iraqi Freedom (OIF). c. On 1 November 2009, he reenlisted in the Regular Army (RA) for 5 years. d. On 14 March 2011, Orders HF-073-0242 placed the applicant on TCS orders in support of Operation Enduring Freedom (OEF). e. According to the applicant’s Enlisted Record Brief (ERB), he received the following promotions: * 10 October 2008 he was promoted to Private (PV2)/E-2 * 1 January 2009 he was promoted to Private First Class (PFC)/ E-3 * 1 December 2009 he was promoted to SPC f. On 14 May 2014, the applicant’s ERB shows an Army Body Composition Program (ABCP) FLAG (K) initial report (A) was completed on the application. g. On 17 December 2015 he received an Informal Physical Evaluation Board (PEB) Proceedings, resulting in the board finding the applicant physically unfit and recommending him for a rating of 60%. The board recommended he be placed on the TDRL. He received the following evaluation: * Bilateral pes Planus with Posterior Tibial Tendonitis - condition existed prior to military service * Recurrent Vasovagal Syncope – Onset in 2014 while stationed in Korea due to no specific injury or trauma h. On 28 March 2016, the applicant was placed on TDRL. i. On 5 October 2017(Orders D278-40), the applicant was removed from TDRL and permanently retired at the rank of SPC. 3. The applicant’s records are void of promotion status to SGT. 4. The applicant provides the following documents in support of his request: a. Medical Evaluation Board Narrative Summary shows the following: * Was considered for Chapter 18 due to body weight composition * Diagnosis required for MEB referral was frequent syncopal episode which interfere with performing soldierly duties * His past medical history, PTSD, anger, depression, Asthma, Attention Deficit Hyperactivity Disorder (ADHD), Obesity * Current Functional Limitations were no overt physical exertion or activity, no lifting/lowering/ carrying more than 20 pounds, no ruck marching, no running, kneeing, squatting, pivoting, lunging, jumping * Prognosis: remaining on active duty is very poor * Recommendation referral to Medial Evaluation Board b. Orders 005-0002 shows he was placed on retired list effective date 27 March 2016. c. Medical Certificate x3 shows the applicant had flat feet, Autonomic Imbalance, and Vasovagal Syndrome. d. Department of the Army Memorandum Subject: Request for Rating: SPC M A N shows the PEB on the applicant was unfit to continue military service. The PEB referred to unfitting recurrent vasovagal syncope and bilateral pes planus with posterior tibial tendonitis. e. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Applicant’s rank as SPC. He was retired honorably, the narrative reason for separation was temporary disability. 5. On 16 December 2019 the Army Board for Correction of Military Records (ABCMR) received an Advisory Opinion from the Department of the Army US Army Physical Disability Agency. The advisory opinion shows the following: a. The applicant requests a rank increase in relation to his Integrated Disability Evaluation System (IDES) case. b. The applicant states he was on the SGT promotion list in 2013 prior to his placement on the TDRL in 2016. His IDES case file and his statement suggest he was “flagged” for noncompliance with the Army’s body composition standards as of 2015. The applicant did not provide evidence of the promotion list or anything to indicate that the “flag” for noncompliance with the Army Body Composition Program (ABCP) was removed. c. Army Regulation 635-8 shows enlisted soldiers on the promotion list when retired for physical disability under USC 1201 or 1204 who are placed on TDRL under 10 USC 1202 or 1205 will be retired for disability at the promotion list grade; this does not apply unless the applicant was fully eligible for promotion. Under Army Regulation 600-8-19 soldiers are not promotable when denied favorable personnel actions (flagged) under AR 600-8-2 such as being noncompliant with the ABCP. Notably, the inability to perform aerobic events due to an underlying medical disorder is not sufficient justification for noncompliance. If the applicant was in fact on the promotion list but was “flagged” making him non-promotable, he is not entitled to the rank increase as requested. If he can present evidence on the promotion list and removal of any flag, his request may be granted. d. They find the applicant’s request is legally insufficient. 6. See REFERENCES below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service and the reason for his separation. The Board considered the review and conclusions of the USAPDA advising official, the absence of evidence that the applicant was selected for promotion to SGT and the suspension of personnel actions (FLAG) document in the records. The Board found insufficient evidence that the applicant was in a promotable status at the time of his separation. Based on a preponderance of evidence, the Board determined that the rank reflected for the applicant at the time of separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. REFERENCES: 1. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)), show “Noncompliance with Army Body Composition Program” (Flag code K). The effective date of the Flag is the date that the Soldier was found to be in noncompliance with AR 600–9. The use of certain medication to treat an underlying medical disorder or the inability to perform all aerobic events may contribute to weight gain but are not considered sufficient justification for noncompliance with AR 600–9 and the Soldier will be flagged. Soldiers will not be exempt because of chronic medical conditions unless an exception to enrollment in the ABCP is granted by the DCS, G–1. 2. Title 10, U.S. Code, section 1372, states any member of an armed force whose name is placed on the TDRL under section 1202 or 1205 of this title is entitled to the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. 3. Army Regulation 635-8 (Separation Processing and Documents), paragraph 6-7.a, enlisted Soldiers who are on a promotion list when retired for physical disability under 10 USC 1201 or 1204, or who are placed on the TDRL under 10 USC 1202 or 1205, will be retired for disability at the promotion list grade. 4. Army Regulation 600-8-19 (Enlisted Promotion and Reductions), states eligibility criteria for recommendation and promotion to SGT and/or SSG includes: * Remain eligible until determined unfit by the DES process * Possess a current passing APFT score in accordance with applicable regulations and field manuals * In compliance with Army Regulation 600-9 Army Body Composition Program * Not Command referred to ASAP program * Not flagged in accordance with Army Regulation 600-8-2 5. AR 600-8-19: Promotion Packet, because promotion scores are a function of an automated process, there is no promotion packet. Upon receipt of the promotion board’s recommendation, the promotion authority’s decision to authorize integration of a Soldier onto the promotion recommended list will be by memorandum. a. Promotion of Soldiers in the Disability Evaluation System a Soldiers in the Disability Evaluation System (DES) process who are pending a medical fitness determination (referral to a medical evaluation board under AR 40–400, or physical evaluation board under AR 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 PMOS disqualification. No Soldier who is in the DES process will lose his or her promotable status solely because a promotion list expires prior to a vacancy for promotion becoming available. b. Non-promotable status, A Soldier is in a non-promotable status and will not be selected, promoted, advanced, appointed to a higher rank, or laterally appointed to CPL, 1SG, or CSM when one of the following conditions exist: Soldier is under a Flag per AR 600–8–2 or has a circumstance that requires a Flag. The Soldier is in a non- promotable status whether the Flag is actually initiated and completed or not, for example, for failure of APFT, body composition standard, completion of processing and punishment under UCMJ, Article 15, (except for summarized proceedings imposed according to AR 27–10), or comparable State law. Refer to paragraph 1–21 for Soldiers undergoing medical evaluation for retention. //NOTHING FOLLOWS//