IN THE CASE OF: BOARD DATE: 18 January 2011 DOCKET NUMBER: AR20100018730 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 that he be restored to the rank of sergeant first class (SFC)/E-7. 2. The applicant states, in effect, that his rank was unjustly taken away from him because he had a bad elbow for which he is receiving service-connected disability and he received no help or rehabilitation, just removal of his rank. 3. The applicant provides a copy of a DA Form 4856 (General Counseling Form) and a copy of his temporary duty (TDY) orders to attend the Advanced Noncommissioned Officer Course (ANCOC). CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 13 September 1983 for training as a track vehicle repairer. He served through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 February 1994. 3. On 1 July 1998, while serving as a recruiter in Michigan, the applicant was conditionally promoted to the pay grade of E-7. His promotion orders specified that his orders would be revoked and his name would be removed from the promotion list if he failed to meet the Noncommissioned Officer Education System (NCOES) requirements (completion of ANCOC). 4. The applicant departed Detroit, Michigan on 20 September 1998 for Aberdeen Proving Ground, Maryland to attend ANCOC. 5. On 22 September 1998, the applicant failed the push-up event of his Army Physical Fitness Test (APFT) and he was denied enrollment in the ANCOC. 6. On 15 October 1998, he was administratively removed from the Promotion Selection List by the Total Army Personnel Command and restored to the rank of staff sergeant E-6 with a date of rank (DOR) of 1 February 1994. 7. On 30 September 2003, he was retired and transferred to the Retired List in the pay grade of E-6 effective 1 October 2003. He had served 20 years and 18 days of total active service. 8. A review of his evaluation reports show he passed his yearly APFT both before and after his failure of the APFT for attendance at ANCOC and he continued to pass his APFT until he retired. 9. Army Regulation 600-8-19 (Enlisted Promotions), in effect at the time, provided, in pertinent part, that Soldiers could be promoted conditionally provided they completed the NCOES requirements for their grade subsequent to their promotion. Failure to complete the NCOES requirements would result in their orders being revoked and removal from the promotion standing list. DISCUSSION AND CONCLUSIONS: 1. The applicant was conditionally promoted to the pay grade of E-7 with the understanding that he must complete the NCOES requirements for his pay grade. In his case completion of ANCOC was necessary for him to retain his promotion and he failed to do so. 2. Additionally, his evaluation reports show he continued to serve until his retirement and he passed his APFT every year until he retired. 3. While he contends that he had a medical problem with his elbow, he has failed to show through the evidence of record or the evidence submitted with his application that he had a medical condition that prevented him from passing his APFT at the time. 4. Therefore, in the absence of sufficient evidence to show that he was unjustly removed from the promotion list in accordance with the regulations in effect at the time, there appears to be no basis to grant his 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) AR20100018730 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100018730 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1