PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 March 2002
         DOCKET NUMBER: AR2001062727


         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
M .Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Walter T. Morrison		Member
Mr. Roger W. Able		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 his rank of SFC/E-7 be restored with back pay and allowances.

3. The applicant states that he appeared before an Army separation board,
that found insufficient evidence and recommended that he be retained. The board recommended that a request be prepared and forwarded to the Advanced Noncommissioned Officer Course (ANCOC) at Fort Lee, Virginia requesting a corrected copy of his DA Form 1059 (Service School Academic Evaluation Report). Prior to receiving his corrected DA Form 1059, he was reduced from SFC to SSG. In support of his application, he submits copies of: several memorandums supporting his request; two DA Forms 1059; a copy of his DA Form 1574 (Report of Board Proceedings by Investigating Officer/Board of Officers); his orders reducing him from SFC to SSG; and his orders promoting him to SFC.

4. The applicant’s military records show that he is currently serving in the Army Guard/Reserve (AGR) with the 416th Engineer Command as a supply sergeant.

5. The applicant was conditionally promoted to the pay grade of E-7/SFC on 1 October 1998.

6. The applicant’s DA Form 1059, for the period 8 April to 17 June 1999, shows in item 16 (Comments) that the applicant was administratively relieved from ANCOC for disciplinary reasons (positive urinalysis).

7. The applicant provided a copy of a memorandum from his defense counsel, dated 21 June 1999. Counsel stated that the applicant understood that he would not be permitted to attend graduation exercises or receive his ANCOC diploma and DA Form 1059 pending final action of his urinalysis sample that was submitted on 1 June 1999, which tested positive for BZE (cocaine metabolite). Counsel also stated that if the allegation was later determined to be unfounded by the command, the applicant would receive his certificates and orders reflecting his ANCOC completion.

8. The applicant was reduced to the pay grade of E-6/SSG with an effective date of 8 March 2000, and a date of rank (DOR) of 15 December 1993.

9. The applicant appeared before a board of officers on 15 April 2000, and was represented by counsel, which is evident by the DA Form 1574. The Board found that there was insufficient evidence to support the allegations that the applicant knowingly committed a serious offense and that the occurrence that led to these proceeding were unlikely to reoccur based on the following facts: a) the



low level of BZE identified in the test was consistent with the defense case of innocent ingestion according to the expert witness; b) the applicant had not previously, nor subsequently, tested positive for BZE. He was tested at least seven times prior and twice since Fort Lee; and c) psychological examiners recommended no drug rehabilitation because they identified no drug problem with the applicant. The board recommended that the applicant be retained in the
military and restored to all previous rank and responsibilities. The appropriate authority approved the board findings and recommendations that the applicant
be retained and returned to duty in his military occupational specialty (MOS), but disapproved that his rank and responsibilities be restored.

10. On 3 June 2001, the applicant submitted a request to the Commander, US Army Facility Engineer Group D requesting a corrected copy of his DA Form 1059 showing that he completed ANCOC, 92Y, class 99-503, during the period 6 April to 22 June 1999, at Fort Lee, Virginia.

11. On 3 June 2001, the Commander, US Army Facility Engineer Group D submitted a request to the Commander, 416th Engineer Command requesting consideration and favorable endorsement in having a corrected DA Form 1059 issued to the applicant showing that he completed ANCOC. The attached
DA Form 1574 indicates that insufficient evidence was found to support the allegations that the applicant knowingly committed a serious offense. The applicant has shown leadership and is a current asset to this unit.

12. On 5 June 2001, the Commanding General of Headquarters, 416th Engineer Command submitted a request to the commandant of the NCO Academy at Fort Lee, Virginia, requesting that a corrected DA Form 1059 be issued to the applicant showing that he successfully completed ANCOC.

13. In the processing of this case an advisory opinion was provided by the Chief, Office of Promotions, Reserve Components of the Total Army Personnel Command (PERSCOM). The opinion made reference to Army Regulation 140-158, chapter 7, paragraph 7-12d, dated 17 December 1997, which pertains to failure to meet Noncommissioned Officer Education System (NCOES) requirements. The opinion states that applicant’s records clearly indicate the current DA Form 1059, dated 17 June 1999, which shows that the applicant failed to achieve course standards. The opinion determined that the applicant should not have his rank restored until that office could be provided with a corrected copy of the DA Form 1059, showing that he successfully completed ANCOC.

14. The applicant was provided a copy of this opinion for possible comment. He
responded by providing a corrected copy of his DA Form 1059, dated 22 June 1999, which shows that he completed ANCOC and achieved course standards during the period 8 April to 22 June 1999.
15. Army Regulation 140-158 prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers
of the US Army Reserve (USAR). Chapter 7 outlines policy and procedures governing grade reduction and restoration of USAR soldiers. Paragraph
7-12d pertains to failure to meet conditional promotion NCOES requirements.
It states that a soldier who accepts a promotion with the condition that he or she must enroll in, and successfully complete, a specified NCOES course, and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a
“No Show”, will be reduced to the grade and rank held prior to the conditional promotion.

16. Paragraph 7-5 of the same regulation states that DOR for restoration of an AGR soldier reduced in accordance with paragraph 7-12d will be the original DOR of the grade held before reduction.

CONCLUSIONS:

1. The evidence of record shows that the applicant was administratively relieved from ANCOC for disciplinary reasons (positive urinalysis).

2. The evidence of record also shows that the applicant appeared before a board of officers who found insufficient evidence to support the allegations that the applicant knowingly committed a serious offense and recommended that he be retained in the military and restored to all previous rank and responsibilities. However, the proper authority only approved that the applicant be retained and returned to duty in his MOS, and that his rank and responsibilities not be restored.

3. The advisory opinion provided by PERSCOM clearly stated that the applicant’s records indicated that his current DA Form 1059, dated 17 June 1999, showed that he failed to achieve course standards. The opinion determined that the applicant should not have his rank restored until that office could be provided with a corrected copy of his DA Form 1059 showing that he successfully completed ANCOC.

4. The applicant provided a corrected copy of his DA Form 1059, showing that he completed ANCOC and achieved course standards during the period 8 April to 22 June 1999.






5. The Board notes that in accordance with Army Regulation 140-158, paragraph 7-5, the applicant is entitled to restoration of his original DOR of the grade held before reduction. The Board also notes that the applicant’s original DOR and effective date was 1 October 1998. Therefore, the applicant should be reinstated to the rank of SFC/E7 with a date of rank and effective date of 1 October 1998, the date of his initial promotion, with entitlement to all back pay and allowances.

6. 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 for the individual concerned be corrected:

a. by reinstating him to the rank of SFC/E7 with a date of rank and effective date of 1 October 1998; the date of his initial promotion, and

b. by showing that he is entitled to all back pay and allowances.

BOARD VOTE:

___jl___ ___wm__ ___ra___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Joann Langston___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001062727
SUFFIX
RECON
DATE BOARDED	20020314
TYPE OF DISCHARGE
DATE OF DISCHARGE	ACTVE AGR
DISCHARGE AUTHORITY	AR .ACTIVE GUARD/RESERVE
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 1023
2.
3.
4.
5.
6.