MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 April 2002
         DOCKET NUMBER: AR2001064394

         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:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Donald P. Hupman, Jr.		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, correction of his sergeant first class/E-7 (SFC/E-7) date of rank (DOR) from 15 May 2001 to 1 February 2000.

APPLICANT STATES: In effect, that he was originally conditionally promoted to SFC/E-7 with a DOR of 1 February 2000, contingent on completing the Advance Noncommissioned Officer Course (ANCOC). In January 2000, he seriously injured himself and after surgery, he was placed on a 9 month physical profile for medical recovery that would end in October 2000. Adding in the normal 90 day recovery period, he anticipated being medically cleared to return to full normal duties in January 2001. During his medical recovery period, he continued to accomplish his duties as the Chief, Legal Noncommissioned Officer (NCO) for an airborne intelligence brigade within the limitations of his profile. In September 2000, an unexpected ANCOC class became available, and having missed two earlier classes and wanting to increase his value to his unit, he overzealously attempted to attend the course.

Upon his arrival at the ANCOC, the applicant was measured and it was determined that he had a .05 body fat percentage over the maximum allowed. He claims that in January 2000, prior to his surgery, he weighed 270 pounds and his body fat percentage was 22.6. In September 2000, when he reported to the ANCOC class he weighed 258 pounds, 12 pounds less than before his injury, but he was measured at 24.05 percent body fat, while his maximum allowable body fat percentage was 24 percent. He claims that medical personnel are aware that this increase was primarily due to his inability to lift weights, which caused the loss of musculature despite the fact he was maintaining an effective weight reduction program. He also indicates that he does not contest the accuracy of the tape test rendered at the ANCOC, but feels it is imperative to illustrate that while on profile and only being able to do limited physical training for 9 months, he did in fact lose weight. By following the recovery exercises that the doctors instructed him to do and through diet, dedication, and a sense of duty, he wanted to show the doctors that he would be able to recover faster than originally estimated. Their estimate of full recovery was two years.

The applicant indicates that after being rejected from his first ANCOC class, he submitted, with the steadfast support of his chain of command, a request to be reinstated to the ANCOC list, which was approved by the commander, Total Army Personnel Command (PERSCOM). He attended ANCOC and graduated with academic excellence. He adds that his body fat measurement at ANCOC was 21 percent, which is commensurate with the body fat percentage he had maintained throughout his 14 years of service. He concludes by stating that he was overzealous in attending ANCOC prior to being 100 percent recovered and he takes full responsibility for this action and its consequences.

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However, the applicant requests that the underlying medical reason that caused this incident, his determination to recover and attend ANCOC, his past performance, the recommendations of his chain of command, and the PERSCOM decision to reinstate him to the ANCOC be considered; and on this basis, his promotion date and DOR to SFC/E-7 should be changed to the original date of 1 February 2000. In support of his application, he provides the enclosed statements from members of his chain of command and other senior leaders.

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

On 15 July 1987, he enlisted in the Regular Army and he has continuously served on active duty since that date. He is currently serving in the military occupational specialty (MOS) of 71D, as a senior legal advisor, at Fort Bragg, North Carolina.

The applicant was selected for promotion by the September 1999 Department of the Army (DA) SFC/E-7 promotion selection board. Orders Number 11-38, dated 11 January 2000, issued by PERSCOM, authorized his conditional promotion to SFC/E-7, effective 1 February 2000.

On 31 October 2000, the commandant of the NCO Academy, Fort Jackson, South Carolina, advised the applicant’s commander that the applicant had been denied enrollment in the ANCOC class 004-01 based on his failure to meet the regulatory height and weight standards for initial enrollment.

Orders Number 53-1, dated 21 February 2001, issued by PERSCOM, revoked the applicant’s promotion order based on his failure to meet the height and weight standards that resulted in his being denied enrollment in the ANCOC and in his name being removed from the promotion list.

On 28 February 2001, the Chief, Training Analysis Management Branch, PERSCOM, approved the applicant’s request for reinstatement based on the recommendation of the DA Noncommissioned Officer Education System (NCOES) reinstatement panel. The NCOES reinstatement panel determined that the applicant should be reinstated to the promotion selection list; however, promotion linkage required his successful completion of ANCOC prior to promotion.

On 20 March 2001, the Chief, Enlisted Promotions, PERSCOM, notified the applicant by memorandum that the decision of the NCOES reinstatement panel resulted in his name being reinstated to the promotion list. However, he was also informed that promotion linkage policy required his successful completion of the ANCOC before promotion orders would be published.

On 15 May 2001, the applicant completed the ANCOC requirements and his promotion to SFC/E-7, effective 15 May 2001, was authorized in Orders Number 204-8, dated 23 July 2001, issued by PERSCOM.

In support of his case, the applicant provides the enclosed supporting statements from the following senior leaders, who all strongly recommend his original DOR be restored: his brigade command sergeant major; brigade commander; The Director, Intelligence Policy, Intelligence Directorate, Army Staff (a colonel); and the Commander, United States Army Legal Services Agency, Arlington, Virginia ( a brigadier general).

In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Promotions Branch, PERSCOM, dated 8 January 2002. It recommended that the applicant’s request that his original DOR be restored be denied. It further stated that the decisions to reinstate the applicant to ANCOC and the promotion list were granted as exceptions to policy and do not exonerate his previous failure to meet regulatory ANCOC enrollment height and weight standards. Finally, the Chief, Promotions Branch commented that backdating the applicant’s DOR would afford him an unfair advantage not given to other soldiers and that consistent application of the promotion policy is the only way to ensure a fair and equitable system for all soldiers.

On 16 January 2002, the applicant was provided a copy of the 8 January 2002, PERSCOM advisory opinion in order to be given an opportunity to rebut its contents. To date, he had failed to respond.

Army Regulation 600-8-19 prescribes the policy and procedure for enlisted promotions and it states, in pertinent part, that soldiers whose sequence numbers are reached for promotion to SFC/E-7 and have not completed or attended ANCOC are promoted conditional upon their completion of ANCOC. It further stipulates that soldiers who fail to meet this condition as a result of being denied enrollment in ANCOC, due to failure to meet the Army Weight Control Program standards defined in Army Regulation 600-9, will have their promotions revoked and their names removed from the promotion list.

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 Board notes the applicant’s contention that his original SFC/E-7 DOR should be restored because of the medical factors that contributed to his failure to initially meet ANCOC enrollment height and weight standards. However, the Board finds these issues are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that the applicant was denied enrollment in the ANCOC, his promotion to SFC/E-7 was revoked, and his name was removed from the promotion list in accordance with applicable regulations, due to his failure to meet Army weight control standards. Further, he does not contest the tape measurement procedures used at the ANCOC and indicates that he accepts responsibility for attending the ANCOC prior to being qualified. Therefore, the Board finds no evidentiary basis to conclude there was any error associated with these actions.

3. The Board carefully considered the medical issues raised by the applicant, his overall record of outstanding service, and the strong support for his application provided by his chain of command and other senior leaders. However, while the Board finds these factors were sufficiently mitigating to warrant the Army’s decisions to reinstate him to the ANCOC and his name to the promotion list, it concludes they do not support the further relief requested in this application.

4. In view of the facts of this case, the Board is compelled to concur with the opinion rendered by the Chief, Promotions Branch, PERSCOM, that reinstating the applicant’s original DOR would be inequitable to all soldiers who faced similar circumstances and who did not receive this benefit.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. 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

__RVO__ __RJW__ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064394
SUFFIX
RECON
DATE BOARDED	2002/04/09
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. 21	102.0700
2.
3.
4.
5.
6.