PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2002067519


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		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, reinstatement of his promotion to sergeant first class/E-7 (SFC/E-7).

3. The applicant states, in effect, that he was originally selected for promotion to SFC/E-7 and attendance to the Advanced Noncommissioned Officer Course (ANCOC) in August of 1999; and on 1 January 2000, he was conditionally promoted to SFC/E-7 contingent on his completing the ANCOC.

4. The applicant states that in November 1999, he broke his foot. As a result, he was unable to attend his originally scheduled ANCOC class in January 2000. He was rescheduled for a July 2000 ANCOC class; however, in May 2000, he was placed on a temporary three (T-3) physical profile for a compressed spine, a condition that was discovered while he was performing his duties as the noncommissioned officer in charge (NCOIC) of a mounted color guard. He claims that he notified the Fort Carson, Colorado, installation schools NCO of his physical profile through his chain of command, and he was rescheduled to attend an ANCOC class in January 2001.

5. In July 2000, his physical profile was changed from T-3 to a permanent two (P-2) and in September 2000, it was upgraded to a P-3. In November 2000, he went before a Military Occupational Specialty (MOS) Medical Retention Board (MMRB), which recommended he be retained and continue performing in his MOS 19D (Cavalry Scout). However, this MMRB action was not approved and finalized until January 2001, after his scheduled report date to the ANCOC. As a result of the time involved in finalizing the MMRB action, he was rescheduled to attend a May 2001 ANCOC class.

6. The applicant claims that he continued to be plagued by his back problems and that his military doctor, an orthopedic surgeon, referred him to a civilian neurologist for treatment of his spinal injury in March 2001. The civilian neurologist referred him to a physiatrist for non-surgical treatment of the injury. He claims to have telephonically notified his MOS branch advisor at the Total Army Personnel Command (PERSCOM), as well as the installation schools NCO of this treatment. The PERSCOM branch advisor required him to provide a statement from his doctor explaining his condition and the importance of the treatment, which he did on 20 April 2001.

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7. The PERSCOM branch advisor contacted him and advised him to resend a signed copy of the doctor’s letter, since the first one provided had only been stamped and did not contain the doctor’s signature; in addition, to submitting a request for an ANCOC class deferment from his regimental commander. The applicant states that these requested documents were sent to the PERSCOM branch advisor by facsimile (FAX) on 30 April 2001. At this time, he was informed by the PERSCOM branch advisor that he would also need to provide a copy of the physical profile form to confirm his current temporary profile limitations. He also claims that the soonest appointment he could obtain with his military doctor was 2 May 2001, which was also his scheduled ANCOC class report date. He faxed a copy of his updated profile to the PERSCOM branch advisor the same day as the appointment, and was led to believe that this would satisfy the matter and that it would be taken care of. The applicant claims that since he heard nothing further from his PERSCOM branch advisor, he presumed that the ANCOC matter had been taken care of.

8. The applicant indicates that in this timeframe, he had received reassignment orders to Korea with a report date of October 2001. Since the orders did not refer to his attendance at the ANCOC enroute to his new assignment, he contacted the PERSCOM branch advisor on 19 July 2001. At this time, he was informed that proceedings had begun on 8 May 2001, to revoke his promotion to SFC/E-7 because he had been listed as a no-show at the ANCOC class he was scheduled to attend in May 2001. He claims that it is his desire to go to the ANCOC and to serve as a scout platoon sergeant to the best of his ability, within the limitations of his profile, and he is convinced that he can be an asset to any unit to which he is assigned in this capacity. He concludes by indicating that the fact he has not yet attended the ANCOC is not the result of neglect on his part, and he believes that his being identified as an ANCOC no-show was through no fault of his own, considering all the documents requested by his PERSCOM branch advisor were provided as soon as possible. In support of his application, he provides the documents referred to in his statement and supporting letters from his commander and the installation schools NCO.

9. The applicant’s military records show that on the date of his application to this Board, he was still serving on active duty as a staff sergeant/E-6 (SSG\E-6), at Fort Carson, Colorado.

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10. Orders Number 349-28, dated 15 December 1999, issued by PERSCOM, Alexandria, Virginia, authorized the applicant’s promotion to SFC/E-7, effective
1 January 2000. This order also contained special instructions indicating that those members promoted to SFC/E-7, who did not have ANCOC credit were promoted conditionally. These special instructions further indicated that those members conditionally promoted would have their promotions revoked and their names removed from the centralized list if they failed to meet the Noncommissioned Officer Education System (NCOES) requirement.

11. On 29 September 2000, the applicant was issued a P-3 profile of the lower extremities. This profile limited his physical activity and authorized him to take an alternate Army Physical Fitness Test (APFT) that could consist of the following events: sit-ups, walk, swim, and bicycle.

12. On 4 January 2001, the findings and recommendations of a MMRB held on the applicant, that recommended that he be retained in his MOS, were approved by the appropriate authority and forwarded for filing in the applicant’s OMPF.

13. On 17 April 2001, the applicant’s military doctor, a colonel, completed a statement pertaining to the applicant. This statement indicated that the applicant had a long history of back pain and had undergone physical therapy and chiropractic treatment. More recently, the applicant had an MRI performed that indicated two bulging discs. He was evaluated by a neurologist, who recommended treatment by a civilian physiatrist. This military doctor confirmed that the applicant would undergo further rehabilitation over the next few months and that the applicant’s ANCOC class should be delayed for four to six months to allow this treatment. This statement was stamped with the doctor’s signature block.

14. On 20 April 2001, this doctor’s statement was forwarded to the applicant’s PERSCOM career advisor by the installation schools NCO, Fort Carson, in order for action to be taken to defer the applicant’s ANCOC class date. On 23 April 2001, the applicant’s military orthopedic surgeon provided another statement containing the same information and recommendations that were included in his 17 April 2001 statement; however, this time he signed the completed statement, rather than stamping it.

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15. On 25 April 2001, the applicant’s regimental commander, a colonel, completed a memorandum requesting that the applicant be given a four to six month deferment of his ANCOC class date. Supporting this request, the commander commented on the applicant’s MRI test that revealed two bulging discs in his back. He further indicated that as a result of this test, doctors recommended the applicant undergo further treatment with a civilian physiatrist. The regimental commander indicated that the applicant was pending appointments for further rehabilitation over the next few months and that the chain of command was in full agreement with the military doctor’s recommendation that the applicant’s ANCOC class date be delayed to allow him time for treatment and recovery.

16. On 30 April 2001, the signed doctor’s statement and the deferment request of the regimental commander were forwarded to the applicant’s PERSCOM branch advisor by the installation schools NCO in order for an ANCOC class deferment to be processed.

17. On 2 May 2001, the applicant was issued a T-3 profile and this profile was forwarded to the PERSCOM branch advisor by the installation schools NCO. In addition, a copy of the applicant’s MMRB proceedings were also forwarded to PERSCOM on this same date.

18. On 25 July 2001, the PERSCOM Chief, Enlisted Promotions, prepared a memorandum for the applicant informing him that he was considered and selected for promotion by the SFC/E-7 and ANCOC selection board announced on 3 September 1999. However, based on his failure to attend a scheduled ANCOC class after being found fit for duty by a MMRB, his name was administratively removed from the list.

19. The applicant’s regimental commander provided a letter of appeal to PERSCOM, in which he stated his support for the applicant’s request for reinstatement of his promotion to SFC/E-7 and standing on the ANCOC list. The regimental commander stated that the applicant met his responsibility to notify his PERSCOM branch advisor of his status for the scheduled 2 May 2001 ANCOC class. Finally, the regimental commander recommended that PERSCOM take action to send the applicant to the next available ANCOC class and to Korea.

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20. The installation schools NCO provided a memorandum for record, dated
28 September 2001. The installation schools NCO states, in effect, that the documents pertaining to the applicant’s medical condition and the ANCOC class deferment request were provided to PERSCOM by the applicant through him. He confirms that the doctor’s statement outlining the applicant’s treatment requirements, the regimental commander’s deferment request, and all other documents pertaining to the applicant’s deferment were provided to PERSCOM by 2 May 2001. Once these documents were provided to PERSCOM, he heard nothing further on the applicant’s deferment request and only found out about this in September 2001, when the applicant informed him that his promotion had been revoked and requested a statement. However, the installation schools NCO does confirm that he never received official notification at the installation that the applicant was listed as a no-show at the May 2001 ANCOC class.

21. In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Promotions Branch, PERSCOM. It recommends that the applicant’s request for reinstatement of his promotion and his name on the ANCOC list be denied. PERSCOM officials indicate that the applicant was conditionally promoted on 1 January 1999, and this promotion was later revoked based on his failure to attend a scheduled ANCOC class after he was found fit for duty by a MMRB. It further indicates that the applicant’s request for reinstatement to the ANCOC was disapproved by the NCOES reinstatement panel on 29 August 2001, and to reinstate the applicant’s promotion to SFC/E-7 would afford him an unfair advantage not given to other soldiers.

22. On 14 March 2002, the applicant provided a rebuttal to the PERSCOM advisory opinion. He indicated that the PERSCOM opinion states the facts correctly, however, some facts were not considered. Although he was found fit for duty by the MMRB, he was still undergoing treatment for his injuries. While undergoing treatment, he was referred to a civilian specialist and due to the appointment system, he did not receive an appointment until April 2001. Subsequent to this appointment, his attending military physician determined a different treatment program was in order and that his ANCOC should be delayed accordingly. He took action to contact his installation schools NCO and notified him of the doctor’s determination, and the schools NCO informed the PERSCOM branch advisor of that medical determination. After satisfying the many changing document requirements requested by the PERSCOM branch advisor, he was given the impression that his ANCOC class deferment had been accomplished.

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23. The applicant further commented that it was not until July 2001, when he contacted his career advisor in regard to assignment instructions and ANCOC class attendance, was he informed that paperwork had been started to revoke his promotion and that he needed to contact the NCOES branch. He contacted the NCOES branch and was informed by the ANCOC NCO that he had never received deferment paperwork and that he had been listed as a no-show at his scheduled 2 May 2001 ANCOC class and that paperwork for his promotion revocation had been forwarded on 8 May 2001. At this time, he was informed of the appeal process. The applicant indicates that he immediately contacted the installation schools NCO, who indicated that he was surprised and had never received a no-show status notification and had been under the impression that a deferment had taken place since no other notification had taken.

24. Army Regulation 600-8-19 prescribes the policy for enlistment promotions. It provides for the conditional promotion of soldiers whose sequence numbers are reached for promotion to SFC/E-7 and who have not completed or attended the ANCOC. These soldiers are promoted conditional upon their completion of ANCOC. It furthers provides that soldiers who fail to attend their scheduled ANCOC class for an unjustified reason will be reduced and/or removed from the promotion selection list.

25. The Army’s ANCOC general attendance policy outlined by the PERSCOM NCOES branch states, in pertinent part, that is currently no deadline in determining when the soldier must attend ANCOC. However, generally a soldier is scheduled to attend the ANCOC within a year after the release of the appropriate SFC/E-7 promotion list. The deferment policy outlined indicates that requests for deferments may be considered for medical or compassionate reasons. It further states that soldiers who fail to attend their scheduled ANCOC class for any reason other those that qualify for a deferment, and who are subsequently declared a "no-show" are removed from the centralized promotion list. Further, the NCOES policy indicates that soldiers declared a no-show, who feel there was either an error, injustice or some other type of wrongdoing that contributed to this status, may request reinstatement through PERSCOM's NCOES Reinstatement Panel. If the voting panel finds irregularities, it can reinstate the soldier onto the SFC/ANCOC selection list.

CONCLUSIONS:

1. The Board notes the applicant’s contention that his being declared a no-show from his scheduled ANCOC class and the ultimate revocation of his promotion was the result of his PERSCOM branch advisor not forwarding the documents supporting his ANCOC class deferment to the NCOES branch, and it finds this claim has merit.

2. The evidence of record confirms that, although the applicant was determined to be fit for retention in his MOS by a properly constituted MMRB in January 2001, subsequently, in April 2001, proper medical authorities determined that the applicant should be deferred from attending the ANCOC for four to six months in order to receive necessary medical treatment for an existing medical condition.

3. The Board carefully considered the PERSCOM advisory opinion and it wholeheartedly concurs with the philosophy outlined, which states in effect, that no soldier should be granted an advantage not available to other soldiers, and that consistent application of promotion policy is the only way to ensure a fair and equitable system for all soldiers. However, in view of the facts in this case, the Board does not find that favorable consideration of the applicant’s request would violate this fair and equitable promotion philosophy outlined by PERSCOM promotion officials.

4. The Army’s ANCOC attendance policy, outlined by the PERSCOM NCOES Branch, allows for class deferments for valid medical reasons. The evidence of record confirms that medical authorities determined that the applicant required medical treatment for a confirmed injury that justified a four to six month deferment of his attendance at the ANCOC. In addition, this medical determination was confirmed by the applicant’s regimental commander, who requested a four to six month ANCOC class deferment for the applicant and this request, along with the supporting medical documentation was provided to applicant’s PERSCOM branch advisor prior to his scheduled class date.

5. Although it appears the deferment request and supporting documentation was never provided to the proper PERSCOM NCOES representative for processing, in the opinion of the Board, this does not detract from the validity of the request and should not be held against the applicant. It appears that the applicant did everything possible to comply with the deferment request requirements with the support of his chain of command, and through no fault of his own, this request was never considered or acted on by the proper authority.

6. Therefore, the Board concludes the applicant was inappropriately categorized as a no-show at his scheduled May 2001 ANCOC class through no fault of his own. Further, in the interest of equity, it finds that any resultant actions taken, to include the revocation of the applicant’s SFC/E-7 promotion and his removal from the promotion and ANCOC selection list, should be corrected at this time.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was granted a medical deferment from attending his May 2001 ANCOC class; reinstating his promotion to SFC/E-7, effective 1 January 2000; providing him any back pay and allowances due as a result of the reinstatement of this promotion; reinstating him on the ANCOC list; and scheduling him for attendance at an ANCOC class as soon as possible.

BOARD VOTE:

__FNE__ __BJE__ __REB___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Fred N. Eichorn
                  CHAIRPERSON

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INDEX

CASE ID	AR2002067519
SUFFIX
RECON
DATE BOARDED	2002/04/18
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.