PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001061235


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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 that her date of rank (DOR) for promotion to the pay grade of E-7 be made retroactive to 1 September 1995.

3. The applicant states, in effect, that she was selected for promotion to the pay grade of E-7 in June 1994 and was conditionally promoted on 1 September 1995. She goes on to state that on 9 March 1997, she attended the Advanced Noncommissioned Officer Course (ANCOC) and towards the end of the course failed a test on C2SRS Reports and a single retest. However, she was unjustly dismissed from the ANCOC by the Commandant on 20 April 1998, for failing two retests, when she had only failed one. She continues by stating that she submitted her request for reinstatement to the ANCOC to the Noncommissioned Officer Education System (NCOES) Reinstatement Panel at the Total Army Personnel Command (PERSCOM). In January 2000, she received a call from a member of the panel who informed her that the panel believed that she had not been treated fairly and voted to reinstate her to the pay grade of E-7. On 1 March 2000, the NCOES Reinstatement Panel issued a memo stating that she was to be reinstated to the pay grade of E-7 and scheduled for ANCOC attendance as soon as possible. However, on 2 March 2000, the Enlisted Promotions Branch at the PERSCOM issued a memo stating that she would not be promoted until she completed the ANCOC. After numerous failed attempts to get promoted, she went to the ANCOC on 3 June 2000, completed the course and was promoted to the pay grade of E-7 on 3 August 2000, with a DOR of 3 August 2000. She further states that even after intervention by the staff judge advocate’s (SJA) office to get her original DOR restored, it was discovered that she was the only case in which an individual was reinstated and did not receive their original DOR. She further states that it is unfair for her to be denied her retroactive DOR when there are no guidelines for doing so and her reinstatement action specifically stated that she was to be reinstated to the pay grade of E-7. In support of her request she submits an extensive explanation of events as well as supporting documents to document the time-line of events that occurred. She also submits three similar cases where individuals were reinstated and received their original DOR.

4. The applicant’s military records show that she was promoted to the pay grade of E-7 on 1 September 1995. The orders that promoted her indicate that the promotion was conditional on successful completion of the ANCOC. She reenlisted on 28 September 1995 for a period of 6 years. She had at that time already served 15 years, 2 months and 15 days of total active service.

5. The applicant attended the ANCOC at Fort Jackson, South Carolina beginning 16 March 1998 and was academically dismissed from the course on 20 April 1998 due to multiple test failures of the C2SRS Reports examination. The documents pertaining to the applicant’s dismissal indicate that she failed two retests of the examination. On 20 April 1998, her promotion to the pay grade of E-7 was also revoked and she was granted de facto status for the period of 1 September 1995 to 20 April 1998. She was also issued an Academic Evaluation Report (DA Form 1059) showing that she failed to meet course requirements. The DA Form 1059 was filed on the performance fiche of her Official Military Personnel File (OMPF).

6. The applicant submitted a request for reinstatement to ANCOC and to the pay grade of E-7. In the processing of her request, her commander requested a legal review from the Fort Knox, Kentucky, SJA. The office of the SJA opined that the applicant had requested a second retest of the examination and her request was denied, therefore, since she had been dismissed for failing two retests, the basis for her dismissal was flawed. He recommended that the commander support her request for reinstatement.

7. On 13 March 2000, the Department of the Army NCOES Reinstatement Panel determined that the applicant’s promotion to the pay grade of E-7 should be reinstated and that she should be scheduled for attendance at the ANCOC as soon as practical. However, before the memorandum was dispatched, the PERSCOM Promotions Branch dispatched a memorandum to the applicant on 2 March 2000, advising her that the NCOES Reinstatement Panel decision had resulted in her name being placed back on the Promotion Selection List and that she would not be promoted back to the pay grade of E-7 until she completed the ANCOC.

8. The applicant again attended the ANCOC from 5 June 2000 to 3 August 2000 and successfully achieved course standards. She was promoted to the pay grade of E-7 on her graduation date and was given a DOR of 3 August 2000 as well.

9. On 11 May 2001, in response to a request for reconsideration for award of a retroactive DOR, the PERSCOM Promotions Branch Chief denied the applicant’s request. He indicated that Army Regulation 600-8-19 dated 2 October 2000 provided that soldiers previously removed from the recommended lists are not entitled to receive future conditional promotions and that a decision had been made not to reinstate the applicant’s conditional promotion because the Reinstatement Panel did not declare or address her academic failure as “invalid”.

10. The Enlisted NCOES Reinstatement Panel is a standing panel that convenes monthly or as deemed necessary when directed by the president to review and vote on applications received for reinstatement to the appropriate NCOES school and for promotion retainability. The panel consists of a lieutenant colonel and two sergeants major from within PERSCOM. The panel reviews all cases where the soldier and the chain of command feel extenuating circumstances were not taken into consideration prior to the soldier’s release or removal from a NCO Academy course or NCOES selection list. Soldiers who feel there was an error, injustice or some other type of wrongdoing that contributed to their removal or dismissal may appeal through PERSCOM’s NCOES reinstatement panel. If the voting panel finds irregularities that either caused or contributed to the soldier’s dismissal or their removal, the panel can reinstate the soldier to the NCOES course they were dismissed from. The decisions made by the Reinstatement Panel are final.

11. Military Personnel (MILPER) message number 94-24 dated 22 October 1993, announced conditional promotions to the rank of sergeant first class (SFC) and sergeants major (SGM) for individuals whose sequence numbers had been reached and who had not attended the ANCOC or sergeants major academy (USASMA). It provided, in effect, that conditional promotions are contingent upon the successful completion of the required level of NCOES. Soldiers who prior to 1 October 1993,fail to complete ANCOC or USASMA due to academic or disciplinary reasons, or who were denied enrollment will not be conditionally promoted. Those soldiers who on or after 1 October 1993, accept a conditional promotion, and are subsequently declared an academic failure or fail to meet course requirements, will have their promotion revoked by the PERSCOM and will be removed from the promotion list. Personnel who apply for reinstatement who are reinstated, will receive a DOR and effective date as of the date they graduate the ANCOC. The message expired in November 1995.
12. A review of the electronic message traffic between the applicant’s SJA and the PERSCOM SJA, indicates that the decision to deny the applicant a retroactive DOR was done on an individual case by case basis, using the October 1993 message criteria and it appears that the applicant is the only case in which the message was applied. A staff member of the Board also reviewed similar cases that have been reviewed by the Board and finds that in all such cases, the Board supported the PERSCOM decision to promote individuals who had been reinstated after they completed the ANCOC; however, it was always with a retroactive DOR (to the date they were originally promoted), with entitlement to all back pay and allowances (minus the de facto period they were previously granted).

CONCLUSIONS:

1. The Board finds, as does the applicant, that the issue in this case is one of fairness and the question is whether or not the applicant was treated as all others in similar circumstances, by the parties concerned. The Board finds that such was not the case.

2. The evidence in this case suggests that the NCOES Reinstatement Panel found that the applicant had not been treated fairly when she was dismissed from the ANCOC. Accordingly, that board directed that her promotion be reinstated and that she be scheduled for the ANCOC as soon as possible.

3. While the NCOES Reinstatement Panel may not have indicated a reason for their decision, the soldier has no control over the procedures of that board and should not be penalized if the board failed to indicate a reason for their decision. Inasmuch as that board’s primary purpose is to determine if an irregularity in the system either caused or contributed to the soldier’s dismissal, the fact that it found in favor of the soldier suggests that the soldier should not have been dismissed in the first place.

4. The Board also finds that the PERSCOM incorrectly relied on a message that had expired 3 years prior to the applicant’s attendance and dismissal from the ANCOC and when they applied the message, it appears that they only applied it to the applicant and not to others in similar circumstances. Additionally, the PERSCOM cited as a basis for denying the applicant’s request for retroactive DOR, a regulation that was effective 2 October 2000, 2 months after the applicant’s second promotion to the pay grade of E-7 on 3 August 2000.

5. Accordingly, the Board finds that it would be in the interest of justice to grant the applicant a retroactive DOR to 1 September 1995, with entitlement to all back pay and allowances (less the period she was granted de facto status).

6. Additionally, the Board finds that had the error of the applicant’s dismissal not occurred, she would not have been issued a DA Form 1059 on 21 April 1998, indicating that she had failed to meet the course standards for the ANCOC. Accordingly, that form should be removed from her OMPF in its entirety and the applicant should be afforded any promotion reconsideration to the pay grade of E-8 that she would have received had she not been dismissed from the ANCOC.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected:

a. by correcting the DOR and effective date of promotion of the individual concerned to show that she was promoted to the pay grade of E-7 effective 1 September 1995, with entitlement to all back pay and allowances from that date (minus the period of 1 September 1995 to 20 April 1998 in which she received de facto status); and


         b. by removing the DA Form 1059 dated 21 April 1998 from her OMPF and placing her records before any standby advisory boards for promotion consideration that she would have received had she not been dismissed from the ANCOC, if appropriate.

BOARD VOTE:

___jm ___ __cla ___ ___rvo __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr.___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001061235
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/28
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PLUS
REVIEW AUTHORITY
ISSUES 1. 314	131.0400/PRM EFF DATE
2. 315	131.0500/DOR
3. 206	111.0100/REM AER
4. 313	131.0300/RELOOK STAB
5.
6.