PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2001060275


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas E. O'Shaughnessy		Member
Mr. Hubert O. Fry		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he be allowed to complete the Sergeants Major Course and that he be returned to the rank of sergeant major (SGM).

3. The applicant states, in effect, that after promotion to SGM in the Alabama Army National Guard (ALARNG), he enrolled in the non-resident Sergeants Major Course (SMC) which was required to retain his promotion to SGM.
He completed the non-resident phase of the SMC and reported to the United States Army Sergeants Major Academy (USASMA) at Fort Bliss, Texas, for the 10 day resident phase. When he arrived at Fort Bliss, he had a cold but did not consider that a valid reason to not take the initial Army Physical Fitness Test (APFT) on 6 June 1999 since he had always passed the APFT before in his 35 year career. He failed the two-mile run by 22 seconds. Following the failure, he went to the USASMA doctor who suggested that his failure to complete the run was based on his age and the difference in altitude from his home in Alabama at 400 feet elevation and the 4000 foot elevation at Fort Bliss. The doctor did not examine him for his cold symptoms, prescribe medication, or give him a temporary profile but did prescribe running interval training to adjust to the altitude.

4. The applicant completed the SMC academics in the top 20% of his class. He took the APFT 10 days later at the end of his resident phase. He had significant congestion and shortness of breath but thought he could “gut it out” and complete the run. He failed the run by 33 seconds. He was again seen by the USASMA doctor who found that he had bronchitis and possible chronic obstructive pulmonary disease. The doctor recommended further testing when the applicant returned home. The USASMA commandant did not accept this medical reason for failure of the APFT and dismissed the applicant from the SMC without completion. The applicant appealed the dismissal presenting further medical evidence of his temporary incapacitation but the appeal was denied. He was subsequently administratively reduced to his former rank of master sergeant (MSG). He always passed the APFT prior to going to the USASMA, and after recovering from his illness and being medically cleared, has passed it every time since. He has exhausted all administrative remedies and requests that the Board correct this injustice in order to restore his rank. He submits copies of the doctors’ statements and letters from his chain of command, to include the State Adjutant General, to support his contentions.

5. The applicant’s military records show that he, a member of the ALARNG, was conditionally promoted to SGM, pay grade E-9, on 9 September 1996, based on successfully completing the SMC. He enrolled in the non-resident SMC and completed the non-resident part of the course. On 8 February 1997, he was given a permanent physical profile for no sit-ups due to a cervical

diskectomy. He was certified for the two-mile run and push-ups for APFT with no replacement event for sit-ups. On 20 May 1997, he passed the APFT with
a 19:00 minute run time against a required 20:00 minute minimum passing time. On 6 May 1998, he passed the APFT with a 19:30 minute run time against a required 20:00 minute minimum required passing time. On 28 May 1999, he passed the APFT with a 19:35 minute run time against a new required standard of 19:48 minute minimum required passing time.

6. In June 1999, he reported from Alabama to the USASMA at Fort Bliss, Texas, for the resident phase of his SMC. On 6 June 1999, he took the
APFT at Fort Bliss and failed the two-mile run with a 20:10 minute run time against a required 19:48 minute minimum passing time for his age of 56 years. He was examined by the USASMA doctor who gave him an interval training program for running. After 10 days training and completing the SMC academic requirements, he took the test again on 16 June 1999. He failed the run with a 20:21 minute run time. The applicant was notified by memorandum from the acting commandant, dated 16 June 1999, that he was dismissed from the SMC due to the APFT failures and that he had 2 days to appeal. After a second medical examination, he obtained a statement from the USASMA medical officer, dated 17 June 1999, which stated that the applicant had a bronchial infection and inflammation and possible chronic obstructive pulmonary disease which required further evaluation by a pulmonology specialist.

7. On 17 June 1999, the applicant appealed his dismissal, provided a copy of the medical officer’s statement, and requested deferment of the dismissal decision until he could obtain a medical evaluation by a pulmonology specialist as recommended by the USASMA medical officer. On an undated second endorsement to the dismissal notification, the USASMA acting commandant, informed the applicant that his appeal process was exhausted and that his enrollment in the non-resident SMC was terminated for lack of academic progress. Enclosed was the applicant’s DA Form 1059 (Service School Academic Evaluation Report) for the non-resident SMC showing that he had completed the course academics. Block 14 (Demonstrated Abilities) shows satisfactory written communication, oral communication, and research ability; and superior contribution to group work. Block 15 indicates “Yes” for demonstrated potential for higher level schooling or training. Block 16 (Comments) items show that the applicant (14a) consistently wrote assignments in a well-organized manner, (14b) communicated organized and rehearsed presentations, (14d) enhanced the small group process by supporting all group endeavors, (14e) demonstrated the ability to research and select pertinent information, and demonstrated the potential to function effectively at any level within DOD. Block 16, item 13d shows that he failed to achieve course standards for APFT reasons. Consequently, block 13 (Performance Summary) shows that he failed to achieve course standards.

8. The applicant returned home, obtained a civilian medical examination and medication. He continued the running interval training he had begun at Fort Bliss as recommended by the doctor. On 12 July 1999, he took the APFT at his home station and achieved a 17:59 minutes two-mile run time for a passing score of 74 points (60 points required to pass). A 19 July 1999 letter from the applicant’s civilian doctor (cardiologist) showed that the applicant did not have coronary disease and that a prescription had been given to him for his rhinorrhea.

9. On a 10 August 1999 fourth endorsement to the dismissal notification, the commanding general of Fort Bliss approved the applicant’s dismissal from the SMC. This decision was made before the applicant received the results of a pulmonary examination. On 23 September 1999, a doctor of internal medicine provided the applicant a letter, addressed to whom it may concern, stating that the applicant was, “unaware of his medical condition prior to taking his physical fitness test and should not have taken this test. He has since recovered fully and is able to now retake his test.”

10. On 18 October 1999, the applicant took the APFT with his home station unit and achieved a 17:54 minutes two-mile run time for a passing score of
75 points. On 3 November 2000, the applicant took the APFT with his home station unit and achieved a 17:49 minutes two-mile run time for a passing score of 78 points. These times and scores were certified by an APFT noncommissioned officer and a lieutenant colonel.

11. As a result of being dismissed from the SMC, the applicant was not able to retain his promotion to SGM and was administratively reduced to his former rank of MSG on 29 March 2000 by the ALARNG.

12. On 5 April 2001, the applicant again appealed his dismissal from the
SMC to the commandant of the USASMA, requesting the opportunity to take a make-up test. He included the 23 September 1999 doctor’s statement and letters endorsing his request from his colonel brigade commander, his major general state troop command commander, and the major general State Adjutant General. On 21 June 2001, the SMA commandant denied the request stating that the applicant had an opportunity before each test to state if he was sick, injured, or had performed any mission that would have put him at a disadvantage in the APFT. Since he did not speak up then, it would not be fair to now approve the request.

13. Army Regulation 350-41 (Unit Training), chapter 9, states that in the event of a record test failure, commanders may allow soldiers to retake the test as soon as the soldier and the commander feel the soldier is ready. Soldiers

without a medical profile will be retested not later than 3 months following the initial APFT failure. Reserve Component soldiers, not on active duty and without a medical profile, will be tested no later than 6 months following the initial APFT test. Enlisted personnel attending leader development courses, which includes the SMC, must take and pass the APFT in order to graduate.

14. Field Manual 21-20 (Physical Fitness Training) states that a soldier with a temporary profile must take the regular APFT after the profile has expired. Once the profile is lifted, the soldier must be given twice the time of the profile (but not more than 90 days) to train for the APFT. If a normally scheduled APFT occurs during the profile period, the soldier should be given a mandatory make-up date.

CONCLUSIONS:

1. The applicant experienced a documented and proven medical respiratory condition that impaired his ability to perform satisfactorily on the APFT for the SMC. This condition was confirmed in writing by the USASMA military doctor immediately following the second test failure. It was also confirmed by two civilian doctors upon his immediate return to his home state from the USASMA. These extenuating circumstances justify an exception to policy to allow a retest or reconsideration of his APFT ability. The applicant passed the APFT before attending the USASMA and has continuously passed the APFT since returning from the USASMA and recovering from his respiratory condition. Senior ranking members of his chain of command confirm his subsequent passing of the APFT and his consistent physical fitness for performing any duty required of him. They further request and support his restoration to SGM.

2. The applicant achieved or exceeded all the requirements for completion of the SMC and has demonstrated that he consistently passes the APFT, with
the exception of the 10 day period at the SMC when he was temporarily incapacitated. It is an injustice to deny him his promotion and rank of SGM.
It would therefore be appropriate and in the interest of justice to show on the
DA Form 1059: in block 13, that he achieved the SMC course standards; delete in block 16, the comment item 13d – failed to achieve course standards for APFT reasons; and void his reduction from SGM to MSG.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below as an exception to policy.






RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected, as an exception to policy, by:

         a. showing on the DA Form 1059, block 13, that he achieved course standards for the SMC;

         b. deleting from the DA Form 1059, in block 16, “Item 13d - failed to achieve course standards for APFT reasons.”;

c. showing on the DA Form 1059, in block 16, “Pass 9907” instead of the entry, “Fail 9906”;

d. voiding the orders reducing him to MSG, reinstating him to the rank of SGM; and

e. providing requisite difference in pay.

BOARD VOTE:

__ao___ __ts____ __hf____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Arthur A. Omartian___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060275
SUFFIX
RECON
DATE BOARDED	20020430
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	110.03 - Reinstatement
2.	133 – Reduction in Grade
3.
4.
5.
6.