MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 June 2002
         DOCKET NUMBER: AR2002067378

         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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: That he be reinstated to the rank of sergeant first class (SFC).

APPLICANT STATES: That the decision not to reinstate his rank by the Noncommissioned Officer Education System (NCOES) Reinstatement Panel is unjust. He requests a review and reconsideration of his appeal for the academic dismissal from the Advanced Noncommissioned Officer Course (ANCOC) Class Number (PH 1) 009-01 at Fort Jackson, South Carolina, on 7 March 2001, due to failure of the Army Physical Fitness Test (APFT). He states that he is appealing their decision based on his current medical condition, further examinations, and medical procedures that have occurred since his dismissal from the course. He also states that he has seen physicians on six occasions, referred three times for civilian medical care and issued a Permanent Physical Profile since April 2001. He further states that his medical condition had been an "issue" since 1988 and a "Permanent Profile" probably could have been issued to him on many of his visits to physicians throughout the years. He states that he has been reluctant to accept or pursue such profiles because of the stigma it represents. He claims that this was very evident during the NCOES Course when he did not request nor seek medical attention after he failed the first APFT and prior to the second test that was administered. Further, if he had pursued medical attention, a profile probably would have been issued and an alternate event would have been taken in lieu of the 2-Mile Run enabling him to graduate with his peers. He states that his pride and reluctance to be labeled "Profiler" or to become less of a noncommissioned officer (NCO) in the eyes of his peers did not permit him to choose that route.

In support of his application, he submits a memorandum addressed to the Army Board for Correction of Military Records (ABCMR); a memorandum from the Chief of the Training Analysis Management Branch, U.S. Total Army Personnel Command (PERSCOM); a memorandum from the Chief of Enlisted Promotions, Promotions Branch; a copy of Order Number 206-6, dated 25 July 2001, removing him from the SFC Promotion List; a memorandum appealing his dismissal from the ANCOC Class Number (PH1) 009-01; a memorandum from the Clinical Director at the U.S. Southern Command in Miami, Florida; a letter from his orthopedic surgeon; three NCO Evaluation Reports (NCOER) covering the period February 1997 through January 2000; his photograph; a copy of his DA Form 2-1 (Personnel Qualification Record); his Enlisted Record Brief; a DA Form 1059 (Service School Academic Evaluation Report) covering the period 26 February 2001 through 13 March 2001; DA Form 705 (Army Physical Fitness Test Scorecard); DA Form 5500-R (Body Fat Content Worksheet (Male)); and several medical documents.

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

The applicant enlisted in the Regular Army on 28 August 1985 and completed training as a single channel radio operator. He has continuously served through a series of reenlistments and is currently assigned to the U.S. Army Recruiting Battalion in Miami, Florida, in the rank of staff sergeant.

The applicant was promoted to the rank of staff sergeant (SSG)/pay grade E-6 with a date of rank and effective date of 1 August 1995.

His NCOERs, covering the periods December 1989 through September 2000, reflect that he passed the APFT and met the height and weight standards.

On 14 December 2000, orders were issued by PERSCOM which promoted the applicant from SSG to SFC with a date of rank and effective date of 1 November 2000. The special instructions on these orders stated that, "SSG promoted to SFC who do not have ANCOC credit are promoted conditionally. Those soldiers who receive a conditional promotion will have their promotions revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement."

The applicant provided a copy of his Service School Academic Evaluation Report, for the period 26 February 2001 through 7 March 2001, which indicates that he was academically eliminated from ANCOC Class Number (PH 1) 009-01, due to multiple APFT failure. Item 16 (Comments) on his report shows the entry "0103 FAIL 70/193...YES."

On 30 April 2001, the applicant appealed his academic dismissal from ANCOC Class Number (PH 1) 009-1. In his appeal, the applicant stated that his failure was due to the physical problems with his knee, and was not due to lack of discipline. He stated the purpose of this appeal was to retain the rank of SFC, and to be rescheduled to attend ANCOC after surgery and rehabilitation to correct his medical condition. He further stated that the medical problem with his knee began in 1988 and has not prevented him from performing all of his duties to include attending and passing the Primary Leadership Development Course and Basic Noncommissioned Officer Course (BNCOC).

In support of his appeal to the NCOES Reinstatement Panel, he provided two letters of support, one from a civilian orthopedic surgeon and one from a colonel in the Medical Corps. The letter from the orthopedic surgeon states that the applicant had been his patient since 30 March 2001 and that he had sustained an injury to his knee with internal pain probably in November based on information given by the applicant. He also stated that the applicant was scheduled for surgery on 9 May 2001 and would need to be out of work for at least three months. The letter from the Medical Corps Officer stated that he first evaluated the applicant on 12 March 2001 and was told about the applicant's left knee pain for many years. Since the injuries happened in November 2000 or sooner, the applicant's left knee was not suitable to allow him to run effectively in February 2001 when he was unable to successfully pass the run portion of his APFT.

On 25 July 2001, PERSCOM notified the applicant that his name had been administratively removed from the SFC Promotion List based on his elimination from ANCOC due to his APFT failure. As a result, orders were issued by PERSCOM which revoked the applicant's promotion to SFC and administratively removed his name from the Calendar Year (CY) 2000 SFC Promotion List.

On 29 August 2001, PERSCOM notified the applicant that his request for reinstatement to SFC did not warrant reinstatement or reversal of the decision regarding him.

Records show that the applicant was placed on a permanent physical profile on 13 December 2001, for chronic left knee pain.

Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system. It states, in pertinent part, that effective 1 October 1993, the Army linked NCOES to promotion to SSG, SFC, and SGM. Linking the NCOES to promotion ensures NCOs possess the appropriate skills and knowledge required prior to assuming the duties and responsibilities of the next higher grade. The regulation also states that soldiers are required to be graduates of ANCOC prior to promotion to SFC. Those soldiers who fail to successfully complete or do not attend their scheduled NCOES will have their conditional promotions revoked and will be removed from the list.

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 applicant was conditionally promoted to the rank of SFC/pay grade E-7 with a date of rank and effective date of 1 November 2000.

2. Records show the applicant was academically dismissed from ANCOC on 13 March 2001 due to APFT failure.

3. The applicant appealed his dismissal from ANCOC, however, his appeal was denied by the NCOES Reinstatement Panel. As a result, PERSCOM published orders which revoked the applicant's promotion to SFC and removed his name from the CY2000 SFC Promotion List.

4. The Board considered the applicant's contentions regarding his medical problems with his knee. The Board noted the applicant's contentions that he did not seek medical attention because of the "stigma" it represents and he did not want to be labeled a "Profiler". These arguments clearly demonstrate an error in judgment on his part and they are not a basis for reinstatement.

5. The applicant's contention that he could have been issued a "Permanent Profile" based on medical evaluations throughout the years is merely speculation on his part and not a basis for reinstatement.

6. The applicant's contention that if he pursued medical attention at ANCOC, then he would have been issued a profile and taken an alternative event in the APFT is also speculation on his part and not a basis for reinstatement to E-7.

7. The Board also considered the statements provided by medical authorities in support of the applicant's appeal and the medical records which diagnosed the applicant as having left knee tears. However, the medical examinations were performed subsequent the applicant's dismissal from ANCOC.

8. The applicant has failed to show through the evidence submitted with his application or the evidence of record, that the decision of the NCOES Reinstatement Panel was unjust or in error. The applicant was aware of the requirement to complete ANCOC prior to his promotion to SFC. Therefore, there is no basis for reinstating him to the rank of SFC.

9. 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.

10. 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

FNE____ RTD_____ RWA____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067378
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020611
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.0000
2.
3.
4.
5.
6.