MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 February 2002
         DOCKET NUMBER: AR2001059304

         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.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Roger Able		Member

         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)

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APPLICANT REQUESTS: In effect, that an Academic Evaluation Report (AER) be expunged from his record; that he be given an opportunity to take an Army Physical Fitness Test (APFT) when medically qualified; that if he passes the APFT his record reflect satisfactory completion of class #25 of the United States Army Sergeants Major Course (SMC) on 16 June 2000; and that all records subsequent to 16 June 2000 which are adverse and which were the result of the AER be expunged from his record to include his loss of rank.

APPLICANT STATES: In effect, that his argument is presented in the enclosed supplemental statement prepared by his counsel.

COUNSEL CONTENDS: In effect, that the applicant is a Reservist who was promoted to E-9 conditioned upon successful completion of the SMC, which is a protracted event in the case of a Reservist. The applicant began the non-resident correspondence course in April 1998 and satisfactory completed all phases of the correspondence course which resulted in his receiving active duty orders to attend the 17 day phase 7 of the SMC at Fort Bliss, Texas.

On 11 May 2000, the applicant received orders that directed him to report to phase 7 of the SMC at Fort Bliss on 31 January 2000. The applicant satisfactorily completed the course in its entirety, which included all academic and military aspects of the course that spanned more than 2 years; in addition, to phase 7. However, he failed the course because while attending the active duty portion of the course at Fort Bliss, he failed the run portion of the APFT by
53 seconds. Counsel claims the controlling regulatory scheme in this area provides that a student attending a professional school must take the APFT test within 72 hours of arrival. If that test is failed, then a second test must be given within 7 to 14 days. If there is a second failure then academic dismissal is appropriate. Counsel claims that while facially it appears that regulatory scheme was complied with as the applicant failed one test within 72 hours of arrival, on
2 June 2000, and then again on 14 June 2000; however, the overriding regulatory scheme associated with the taking of an APFT provides that when a soldier is on a temporary 3 (T-3) profile that prohibits running, the soldier is not required to take the run portion of the APFT and an alternate means to complete the APFT can be established.

Counsel states that the circumstances surrounding the 14 June 2000 APFT taken by the applicant are as follows: the applicant began to feel significant pain in his left foot during the APFT and he failed the run by 53 seconds, he completed the two-mile run in 20 minutes and 23 seconds, while the allowable time was 19 minutes and 30 seconds.

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As a result of his pain being so excruciating during the APFT, the applicant went directly to the troop medical clinic, where he was diagnosed with acute gouty arthritis, a condition for which he had a medical history. Further, his left toe was noted to be swollen and tender and medication was prescribed. This consult resulted in a medical profile of T-3 being issued. This profile prohibited running, among other activities for 90 days.

On 14 June 2000, the applicant received a notice of dismissal, which he appealed on 15 June 2000. On 7 August 2000, he completed all other aspects of the course, but was issued an AER dismissing him from the course. The AER was referred and the applicant sought Congressional intervention. The Army’s response is revealing in that it indicated that the applicant was at a briefing when the briefer stated “I need to know if anyone of you are sick, injured or performed any mission last night that would cause fatigue and put you at a disadvantage in taking the APFT this morning.” The applicant did not respond at the time, but instead chose to take the APFT on both occasions. Counsel contends that the applicant did not know at this time of this briefing that his chronic gout would flair in the second run, as it did not flair up in the first run. So counsel claims the Army’s rationale is a non sequitur, as it has no application to the facts.

In addition, counsel asks, if the applicant sprained his ankle for all to see, would he even be here? The fact is that an unforeseen medical event occurred during the run which at that moment required a T-3 profile prohibiting running. This profile was memorialized within minutes after the run and although it was done after the fact, it does not diminish the seriousness of the physical impairment. Counsel contends that the APFT should be voided as a matter of law because it was done while the applicant was in a T-3 condition. Beyond the law is the simple common sense equity here of not destroying the career of a command sergeant major (CSM), which includes service in Vietnam and Desert Storm, over a circumstance which is so easily addressed and corrected.

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

He was serving in a Troop Program Unit (TPU), United States Army Reserve (USAR) on 1 January 1998, when he was conditionally promoted to the rank of CSM contingent on his successful completion of the SMC.

The applicant was enrolled in non-resident class number (#) 25 of the SMC on
1 April 1998. On 11 May 2000, he was issued orders by the United States Army Reserve Personnel Command (ARPERSCOM), which ordered him to active duty for 17 days to attend phase 7 of the SMC at Fort Bliss with a reporting date of
31 May 2000.

On 14 June 2000, the applicant was notified by the commandant of the United States Army Sergeants Major Academy (USASMA) that he was dismissed from class 25 of the nonresident SMC for failure to meet the APFT requirement after two attempts. The applicant was advised that he had the right to appeal the action within two days and that he could present any matters of mitigation or extenuation that he felt may influence the final decision in this matter. Also on
14 June 2000, the applicant acknowledged receipt of the dismissal notification and he elected to appeal the action.

On 15 June 2000, the applicant submitted his appeal, which he based on the fact that the reason for his APFT failure was medical in nature. He commented that he had failed the APFT that was administered on 2 June 2000 and he further stated that he had a medical condition that caused severe pain in his joints making it difficult to run. However, this pain was not experienced during the
2 June 2000 APFT or during his remedial physical training program he participated in between the two tests. He also indicated that during his remedial training program he was making satisfactory progress and could have passed the APFT retest. He also stated that on 14 June 2000, during the run, he started feeling pain in his left foot, however, he continued the APFT and failed the run.
When he returned to class the pain was so severe that he went to the troop medical clinic. The physician that treated him diagnosed the pain and swelling in his left foot as acute gouty arthritis and indicated that the condition is caused by a change in diet, stress, and physical exercise. Previous medical examinations did not disclose this condition and the attending physician remarked that this condition could result in renal failure if not properly treated. The applicant was further referred to William Beaumont Hospital for a laboratory test on 15 June 2000. He was given medication for the condition and a temporary profile was issued. He finally stated that treatment will either correct this condition or result in a permanent profile. He concluded his appeal by requesting a retest of the APFT upon final disposition of his medical condition.

On 1 August 2000, the applicant was notified by the commanding general (CG) of the United States Army Air Defense Artillery Center and Fort Bliss, Texas (USAADACENFB), that his appeal of the dismissal from the nonresident SMC was denied. The CG commented that failure to meet APFT requirements was the basis for the applicant’s dismissal and although he regretted the action, he did not feel the matters submitted by the applicant in extenuation and mitigation were sufficiently compelling to reverse the dismissal decision.

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On 7 August 2000, the commandant, USASMA, notified the applicant that his enrollment in the USASMA nonresident USASMC was terminated due to his failure to meet the Army APFT requirements after two attempts and that his appeal had been denied. The applicant was further advised that he had exhausted the appeal process allowed by regulation and that his AER was being forwarded to him in accordance with the applicable regulation. The applicant was further informed that he had 30 days from receipt of the AER to reply and that he could enclose a comment or statement if he wished; however, comments or statements he submitted would not constitute an appeal. The applicant was finally advised that if he wished to appeal the AER he must follow the appeal process outlined in Army Regulation 623-205.

The performance summary of the AER issued to the applicant on 7 August 2000 indicated that he had failed to achieve course standards and the comment supporting this evaluation contained in the comment portion of the report indicated that the applicant had failed to achieve course standards for APFT reasons.

On 3 November 2000, the Adjutant General (AG) of the USAADACENFB responded to an inquiry pertaining to the applicant’s case from a Member of Congress (MOC). In this reply, the MOC was advised that the applicant did in fact fail to meet course standards on the APFT for the run event on 2 and
14 June 2000. He was further informed that students attending professional courses will take the APFT within 72 hours of enrollment and if a soldier fails the initial APFT, the soldier will be provided one retest seven to fourteen days after the failure of the initial one. A soldier who fails the retest will receive an academic dismissal for failure to meet APFT standards. The applicant was retested twelve days after his initial failure and again failed the run event. Further, the applicant was at a briefing prior to the test beginning when the briefer stated “I need to know if anyone of you are sick, injured or performed any mission last night that would cause fatigue and put you at a disadvantage in taking the APFT this morning”. The applicant failed to respond at that time, but instead chose to take the APFT on both occasions. The MOC was further advised that once a soldier is dismissed, the USASMA has no authority to reenroll any student and the applicant must address any further requests through the United States Army Reserve Command (USARC).

There is no evidence of record to show the applicant ever attempted to enlist the assistance or support of his chain of command in applying for reinstatement to the SMC through the USARC or that he ever appealed the AER issued to him for dismissal. Therefore, the chain of command’s position in regard to this case or the USASMA response to the applicant’s contentions is not part of the evidence available to the Board.

In support of his case, the applicant provides a Standard Form (SF) 800 (Chronological Record of Medical Care) which confirms his treatment for podygra, acute gouty arthritis at the Consolidated Troop Medical Clinic, William Beaumont Army Medical Center, Fort Bliss, Texas, on 14 June 2000. He also provides a Physical Profile form that indicates that he was placed on a T-3 profile for this condition on that date, which included limitations that included no running, jumping, or marching; no prolonged walking or standing; and walking at his own pace and distance.

The military records made available to the Board were limited and did not include the applicant’s medical records. Several attempts to obtain these records were unsuccessful. This included an attempt to obtain the applicant’s military records from his last known unit; however, the response received from this unit indicated that the applicant was no longer assigned.

Field Manual 21-20 contains the policy and procedure for Army Physical Fitness Training. Chapter 14 contains guidance on the APFT and it states, in pertinent part, that a soldier with a temporary profile must take the APFT after the profile has expired. It further states that soldiers with a temporary profile longer than
3 months may take an alternate test determined by the commander with input of health care professionals.

Army Regulation 351-1 (Individual Military Education and Training) describes the Army School System and establishes general provisions for the individual military education and training of all Army components. Chapter 5 contains guidance on the Noncommissioned Officer Education System (NCOES). Paragraph 5-32 establishes that all soldiers attending NCOES courses must meet the Army’s physical fitness standards. Paragraph 5-33 contains guidance on attending NCOES courses with physical profiles. It states, in pertinent part, that soldiers on a permanent profile may attend NCOES courses and take an alternate APFT; however, soldiers on temporary profiles are prohibited from attending NCOES, which includes the SMC, until their profile expires and they recover, or they are placed on permanent profile.

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

1. The Board notes the contentions of the applicant and his counsel that his dismissal from the SMC course and the resultant actions were improper and inequitable because the applicant’s APFT failure was the result of a T-3 profiled medical condition; and further, that all actions associated with the dismissal should be voided as a matter of law and as a matter of equity in order to prevent the destruction of the applicant’s career, which includes service in Vietnam and Desert Storm, over a circumstance so easily addressed and corrected.
2. By regulation, soldiers on a temporary profile are prohibited from attending NCOES courses, which includes the SMC. The evidence of record shows that the applicant’s dismissal from the SMC was accomplished in accordance with the applicable regulations based on his failure to meet the APFT standard. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the dismissal process.

3. The evidence of record confirms and the applicant admits that he did not hold a physical profile, either permanent or temporary, when he arrived at the SMC or when he took and failed the first APFT. Further, the record confirms that he gave no prior indication that he suffered from a medical condition that contributed to his first APFT failure or that impaired his ability to participate in remedial physical training or to take the second APFT.

4. While the Board does not question the veracity of the contentions of the applicant and his counsel in regard to his medical condition or the validity of the medical diagnosis issued after the fact that resulted in the T-3 profile, it finds no evidence to show this condition existed prior to his reporting to the SMC, which would have prohibited his attendance, or prior to taking and failing either APFT.

5. Further, by the applicant’s own admission, this T-3 medical condition was not a contributing factor in his first APFT failure or present during the remedial physical training he took between his two APFT failures. The record clearly establishes that it was only after taking and failing the second APFT, which mandated his dismissal from the course, that the applicant raised the medical issue and obtained the T-3 profile.

6. Therefore, the Board finds no evidence to contradict the appeal determination made by the CG, USAADACENFB, that applicant’s issues of extenuation and/or mitigation were not sufficiently compelling to reverse the dismissal decision. The record clearly confirms that the applicant was not under any physical duress when he failed the first APFT; and the Board finds insufficient evidence to firmly establish that the medical condition that resulted in the T-3 profile was the determinate factor in his failure of the second APFT. As a result, the Board concludes that relief is not warranted in this case.

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7. 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

___JH___ __KAK__ __RA____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001059304
SUFFIX
RECON
DATE BOARDED	2002/02/05
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 821	126.0400
2.
3.
4.
5.
6.