MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:         3 December 1998      
	DOCKET NUMBER:   AC97-09738

	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.




	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 his date of rank (DOR) be adjusted to December 1993.    

APPLICANT STATES:  There was no basis to change his DOR.  There was a failure to consider medical information and information from members of his chain of command with respect to his administrative reduction.  

He states that references to physical training test (APFT) performance or height and weight standards affecting the decision process indicated a malicious intent, that the decision to adjust his DOR gave no consideration to the 17 months he served as a Sergeant First Class and has effectively terminated his career progression.  He states that PERSCOM maintained an unreasonable proof requirement by non-medical personnel, disregarded medical documentation and gave no consideration of command information.  He states that he has been unfairly punished and that PERSCOM actions were in response to a perceived substandard performance.  Persian Gulf combat veterans with unknown medical conditions do not deserve the treatment he received. 

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

The applicant entered the Army on 28 February 1972 and was released from active duty on 27 February 1975 in the grade of E-5.  He enlisted in the Indiana Army National Guard on 15 March 1975 and subsequent to that date served in both the Army National Guard and the Army Reserve.  On 26 November 1982 he enlisted in the active Army for three years and has remained on active duty until the present day.  He was promoted to Staff Sergeant on 1 July 1988.

The applicant has completed numerous military courses, especially in the explosive ordnance disposal (EOD) arena, not only Army and Defense courses, but those of the Navy, Air Force, and Marine Corps.  He completed the airborne course in August 1976, basic medical specialist course in March 1981, and the Primary Leadership Development Course (PLDC) in June 1987, among others.

The applicant has received numerous awards throughout his Army career, including five awards of the Army Commendation Medal, three awards of the Army Achievement Medal, six awards of the Good Conduct Medal, the Joint Service Commendation Medal, and the Bronze Star Medal in April 1991 for his achievements during Operation Desert Storm.  He received the Master EOD Badge in 1992.


A review of the applicant’s evaluation reports dating from February 1986 shows that he consistently exceeded the screening table weight contained in Army Regulation 600-9; however, in all instances he was in compliance with the Army’s weight standards.  His report ending in November 1987 shows that he failed the Army Physical Fitness Test (AFPT), because he failed the two mile run.  Subsequent to that time period he passed the AFPT both before and after his involvement in Operation Desert Storm, failing it only in April 1995 after he had been conditionally promoted to Sergeant First Class.      

On 25 October 1993 he was conditionally promoted to Sergeant First Class effective and with a date of rank of 1 December 1993.  His promotion was contingent upon his successful completion of the Advanced NCO Course (ANCOC), and the order effecting the promotion explicitly stated that those soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement.  

In March 1994 the applicant passed the APFT qualifying him for ANCOC in 1994.  The DA Form 705 (Army Physical Fitness Test Scorecard) indicated, however, that he was disqualified [for attendance at ANCOC] as a result of a physical reason.

On 6 April 1994 the applicant received a temporary T-3 profile for 179 days with physical training at his own pace and no APFT, because a cardiovascular risk screening program revealed one or more abnormal cardiovascular risk factors.  On 20 May 1994 a staff cardiologist at Walter Reed stated that as a result of tests and an exercise study the applicant had a low probability for coronary artery disease and recommended that he could resume normal duties and exercise as tolerated.

On 1 June 1995 the applicant informed his commanding officer of the circumstances concerning his failure to attend ANCOC.  He stated that he was originally scheduled to attend ANCOC in May 1994, however, he received a 179 day profile because of suspected cardiac problems.  During evaluation he was further referred to the Gulf War medical screening program; several problems were reviewed, however, he wanted to return to duty and secured a medical release in October.  His second scheduled ANCOC class was missed because of a series of illnesses in late 1994 and in January and February 1995 which resulted in temporary profile status.  In preparation for his third ANCOC class he 

failed the run event on the APFT by 54 seconds.  He stated that he had been medically effected by his combat service in the Persian Gulf war and had experienced a serious decline in overall health during the past year.  He had made the maximum effort to ensure that his job performance had not been effected, and had been successful except for his ability to run.  He stated that his reduction in rank would not accomplish anything positive for himself or the Army. In a 1 June 1995 letter to the applicant’s commanding officer a doctor from the neurology service at the Walter Reed Army Medical Center stated that a medical reason for the applicant’s failure in the APFT on 19 April [1995] had not been yet excluded.   

In a 28 July 1995 letter to the applicant’s commanding officer a physician from the Walter Reed neurology service stated that there was evidence of an abnormal result found on the somatosensory evoked potential test, which warranted further evaluation of the applicant’s thoracic and lumbar spinal cord with an MRI.  The doctor stated that the applicant was currently under a P2 temporary profile until a final determination [of his condition] could be made.

On 1 August 1995 the applicant formally requested assistance from his commander to stop the revocation of his promotion to Sergeant First Class, referring to the aforementioned letter, stating that he demonstrated poor judgement in believing that he could meet APFT standards by simply pushing himself to overcome a physical problem.  He stated that medical examinations and laboratory tests supported a physical problem which was not fully diagnosed or understood.  He stated that there was a compassionate aspect in that should the reduction include revocation of pay and allowances, it would result in his complete bankruptcy and his forced exit from the Army 36 months from retirement in order to save his home and car. 

On 7 August 1995 his commanding officer forwarded his request to PERSCOM, stating that the applicant had exceptional soldierly qualifications and he believed that the applicant’s failure of the APFT was caused by a medical reason beyond his control, and that once the evaluation was complete, the applicant would be given a permanent profile.

On 10 August 1995 the Total Army Personnel Command (PERSCOM) notified the applicant that he was administratively removed from the promotion selection list because of his failure to attend ANCOC in the fiscal year for which scheduled, due to his failure to pass the APFT.


On 30 August 1995 the PERSCOM disapproved his 1 August 1995 request. 

On 26 October 1995 the applicant received a permanent P2 profile, for paroxysmal left hemiparesis, exercise related, which stated in part that the applicant was to avoid running as part of physical training, but could take the alternate event in the APFT, i.e., walk.

On 16 November 1995 the applicant requested that the DA DCSPER review the PERSCOM decision not to reinstate him to the rank of Sergeant First Class.  He stated that the administrative reduction was a result of not attending ANCOC within the year of being promoted.  However, he had been experiencing significant medical problems since his Persian Gulf combat service, and as a result of continuing treatment he now had a permanent profile and was fully qualified and capable of attending the next available ANCOC.  He stated that two previous classes were missed because of temporary medical profiles; and feeling obvious pressure to meet his obligation he took the AFPT while having a medical problem.  The failure of the APFT resulted in nonattendance and subsequent administrative reduction.  He enclosed the previous appeal packet which was denied by PERSCOM.  His commander supported his request, stating that continued medical evaluation determined that the applicant had a medical condition which warranted a permanent profile, and that his inability to pass the run portion of the APFT could be attributed to his medical condition.

On 8 February 1996 the DA DCSPER returned his request for additional documentation, stating that the statements and profile provided were all after the fact, and that a statement was required from competent medical authority indicating that the failure of the APFT (two mile run) was a result of a pre-existing medical condition.  That official stated that a definite determination had to be made, requested copies of all the applicant’s temporary and permanent profiles, and copies of the applicant’s APFT scorecards (DA Form 705).

On 21 May 1996 the applicant requested reinstatement to the rank of Sergeant First Class, providing the DA DCSPER with the requested documentation.  He stated that his permanent profile was issued after his APFT failure as was the extensive testing which resulted in the current diagnosis [of his condition].  He states that it was clearly evident that the condition had been in existence prior to the AFPT failure, although no one will positively state that the nerve damage in his legs was the reason he was unable to complete the run in the required time.  He asked that his career in the Army not be destroyed because he refused to accept his physical limitations because he thought he could tough it out.  He stated that he was fully capable of performing all requirements and was fully qualified to attend ANCOC. 

The applicant offered with his request a summary of medical data (previously provided to DA DCSPER) that he prepared, in which he stated that he was evaluated for spinal arthritis in July 1994 (and declined a profile), was diagnosed with narcolepsy in November 1994, and with bronchitis in January/February 1995 (resulting in his inability to attend the second scheduled ANCOC); and after his APFT failure in April 1995, neurology examinations confirmed problems with his left arm and leg, and anemia, among other problems.  He passed the APFT taking the alternate event on 10 July 1995 and received a P2 profile on 
16 October 1995 which precluded running. 

He offered a 16 April 1996 letter from a doctor in the neurology service at Walter Reed Army Medical Center to the applicant’s commanding officer.  That doctor stated that the applicant’s evaluation had been completed with a repeat somatosensory evoked potential test; however, there was no diagnosis at that time and he would need periodic follow-up every 6 to 12 months.  That doctor stated that it was possible that this might have affected his performance during his APFT, given that his initial medical complaints in early 1994 predated the actual testing event in November 1994.   The applicant offered medical documents from the Naval Medical Center at Bethesda showing that he had been placed on quarters/light duty with no exercising on three occasions in January 1995 because of his bronchitis.  He offered a 17 May 1996 statement from a civilian physician who stated that he had reviewed the applicant’s medical record and that review revealed a condition that would adversely affect his running ability.

On 8 August 1996 the DA DCSPER stated, that while the additional documentation the applicant provided did not provide sufficient proof for reinstatement of his promotion, in that he should have taken action [prior to the APFT test] if there were medical problems, he would be granted partial relief.  He was reinstated to the April 1993 selection list, and would be promoted upon successful completion of ANCOC with a date of rank and effective date the date of his graduation from ANCOC.  The applicant was so notified by PERSCOM on 12 August.

On 27 February 1997 the applicant completed the Advanced NCO Course at Redstone Arsenal, Alabama.  He exceeded the course standards and was the honor graduate.

On 11 March 1997 the applicant was again conditionally promoted to Sergeant First Class, effective and with a date of rank of 1 February 1997.


On 26 March 1997 the applicant requested assistance from the PERSCOM Inspector General, concerning the decision to adjust his date of rank on promotion from December 1993 to February 1997, stating his previous arguments, i.e., the medical reasons and support from his chain of command.  He noted PERSCOM decision to disregard this information.  He stated that medical personnel documented a condition clearly indicating nerve damage in his leg and that a reasonably intelligent person would clearly see that this would affect his ability to run.  He stated that the previous AFPT results and weight standards provided to DA had no bearing on the matter and could not see how being over the weight table complicated the situation (as DA DCSPER had contended).  He stated that the adjustment in his date of rank was a malicious action for not meeting the standard at a high enough level.  He stated that his medical problems were service connected and a direct result of his hazardous work and exposures to questionable drugs and operating environments.

On 10 June 1997 the PERSCOM Inspector General informed the applicant that his concerns did not fall under the purview of that command and that he should apply to this Board for relief.

On 10 February 1998 the applicant requested assistance from a member of congress (MC).

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the PERSCOM.  An official of that command stated that the applicant was promoted to Sergeant First Class effective 27 February 1997 upon successful completion of ANCOC.  The decision to reinstate the applicant to the January 1993 promotion/ANCOC list was granted as an exception to policy and did not exonerate his previous APFT failure.  That official recommended that the applicant’s request be denied. 

Information obtained from an official in DA DCSPER on 24 November 1998 revealed that a conditional promotion, as in the applicant’s case, was just that.  A soldier would be promoted, receive the rank and benefits, to include pay, of that promotion, provided that he would attend and complete ANCOC.  The soldier, in effect, entered into an agreement to meet the regulatory requirement (to  complete ANCOC) in order to be promoted, yet actually receive the promotion prior to completing this requirement.


That official stated that the applicant could not fully document his failure to attend ANCOC, because he did not pass the physical training test; however, he gave the applicant the benefit of the doubt and did grant him an exception, but only to allow him to be reinstated to the promotion list, and to be promoted upon successful completion of ANCOC ( as stated in his 8 August 1996 memorandum).   

Army Regulation 600-8-19 prescribes for enlisted promotions.  Paragraph 4-7 of that regulation states, in pertinent part, that effective 1 October 1993 a Staff Sergeant must be a graduate of ANCOC prior to promotion to Sergeant First Class.  Conditional promotions are authorized and are contingent upon successful completion of ANCOC.  A soldier who receives a conditional promotion will have orders revoked and his name removed from the centralized list if he fails to meet the ANCOC requirement.  

Army Regulation 614-200, provides in pertinent part, that soldiers must meet the prerequisites contained in DA Pamphlet 351-4 to attend a service school, to include ANCOC.  DA Pamphlet 351-4 is the U.S. Army formal schools catalog. 

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

1.  The applicant failed the APFT in April 1995.  In August of that year he was given a P2 profile.  The applicant himself has stated that his permanent profile and the extensive testing which resulted in the diagnosis of his condition [with the resultant permanent profile] happened after his APFT failure.  Although the applicant states documentation exists that indicates that his condition was such that his medical problems existed prior to the April APFT which caused him to fail the APFT, he has not to the satisfaction of this Board, shown this to be true.  What the applicant has shown is that he may have had medical problems that may have caused him to fail the APFT in April 1995.

2.  Contrary to the applicant’s contention, this Board has determined that the applicant was not punished as a result of his removal from the 1993 promotion list, nor was there anything malicious in the DA DCSPER decision to not adjust his date of rank.  He failed the APFT; therefore, he could not attend ANCOC.  

Because he could not attend ANCOC, he was removed from the 1993 promotion list.  Based on his command-supported appeals, and the medical information available, it appears to this Board that the DA DCSPER went out of their way to accommodate the applicant, reinstating him to the promotion list as an exception to policy, with the proviso that he would be promoted upon his successful completion of ANCOC.  There is no injustice done the applicant simply because he did not receive everything that he wanted.  

3.  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

____jns_  ___ew___  ___rwa__  DENY APPLICATION




						Loren G. Harrell
						Director


INDEX

CASE ID
AC
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR .  .  .  .  .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.