PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002069036


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. William D. Barr		Member
Barbara J. Ellis		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, that he be reinstated to the rank of Sergeant First Class (SFC) and that he be rescheduled for attendance to Advanced Noncommissioned Officer Course (ANCOC).

3. The applicant states that he should be allowed to retain his rank of SFC because he submitted a request for readmission to ANCOC, through his chain of command, prior to receiving a memorandum from the US Army Reserve (USAR) Army Guard/Reserve (AGR), Enlisted Reduction Panel. In support of his application, he submits copies of: several medical documents; DA Form 4187 (Personnel Action), request for readmission to ANCOC; promotion orders; memorandum from the Army Reserve Personnel Command (AR-PERSCOM) dated 10 December 2001; and several documents pertaining to his dismissal.

4. The applicant's military records show that he is currently serving in the AGR
Program with the 1st Brigade, 84th Division as a supply sergeant.

5. He was promoted to SSG/E-6 on 1 November 1992.

6. The applicant was conditionally promoted to SFC/E7 on 1 August 1999.

7. The applicant provided a copy of his DA Form 705, which shows that he was
administered an Army Physical Fitness Test (APFT) on 11 April 2000, by the Noncommissioned Officer (NCO) Academy. This test shows that the applicant failed the push-up event.

8. On 13 April 2000, a DA Form 3349 (Physical Profile) was prepared, which issued the applicant a temporary profile of 131111 due to a right elbow injury. This test was valid until 20 April 2000, and indicated assignment limitations of no push-ups and that he may walk, run, and swim at his own pace and distance.

9. On 12 and 14 April 2000, the applicant was counseled on his failure to pass the APFT for preenrollment at ANCOC.

10. The applicant's DA Form 1059, for the period 12 to 16 April 2000, shows in item 16 (Comments) that the applicant was administratively relieved from ANCOC due to medical reasons. It also stated that the applicant failed to achieve a first time passing score on the initial APFT and subsequently received a temporary profile, which prohibited him from being administered an APFT retest within a specified period of time.





11. On 17 April 2000, the deputy commandant of the NCO academy prepared a memorandum, subject: Student Release Action (Temporary Profile). He informed the applicant that he was being dismissed from the NCO academy due to his profile, which prevented him from taking the APFT retest in accordance with Headquarters, Department of the Army (HQDA) message dated, 29 January 1999, subject: Policy Change to Institutional Army Physical Fitness Testing.

12. On 24 June 2000, a DA Form 3349 was prepared, which issued the applicant a permanent physical profile of 121111 due to his right elbow pain. His APFT consisted of the two-mile run and sit-ups and he was permitted unlimited walking, running, bicycling, and swimming.

13. The applicant requested readmission to ANCOC on 23 May 2001, through his chain of command. His commander recommended approval and his request was forwarded to AR-PERSCOM. The applicant later requested readmission on
12 September and 16 November 2001. His request dated 12 September 2001, was not certified, signed, or dated by the commander and his request dated 16 November 2001, was signed but not dated or certified by the commander.

14. On 10 October 2001, the USAR AGR Enlisted Reduction Panel convened with the responsibility to screen conditionally promoted enlisted AGR personnel. After a comprehensive review of the applicant's professional development education file, the panel determined that the applicant should be reduced in ranked for failing to meet the conditions of his promotion. The panel also stated that the applicant’s recourse for appeal was to this Board.

15. The applicant was reduced to the pay grade of E-6/SSG with an effective date of 24 January 2002, and a date of rank (DOR) of 11 November 1992.

16. A HQDA Message with a Date/Time Group of 292039Z January 1999, subject: Policy Change to Institutional Army Physical Fitness Testing announced the approval of a policy change pertaining to the APFT at Institutional Training Courses. This policy mandated that all soldiers attending Institutional Training Courses would take the APFT within 72 hours of enrollment. If the soldier failed the initial APFT, the soldier will be provided one retest 7 to 14 days after failure of the initial APFT. If the soldier failed the retest, the soldier would receive an academic dismissal for failure to meet APFT standards.

17. The US Total Army Personnel Command (PERSCOM), Noncommissioned Officer Education System (NCOES) Branch published and distributed a new Profile Policy on 5 October 2000. This letter stated that soldiers may attend NCOES courses with a permanent designator 2 (P2) physical profile with a copy of DA Form 3349. Eligibility to attend NCOES with this type of profile was based


on the soldier's ability to train within the limits of the profile provided they could meet the minimum course graduation requirements. This letter further stated that soldiers may attend NCOES courses with a permanent designator 3 (P3) or permanent designator 4 (P4) physical profile with a copy of DA Form 3349 that has been reviewed by a Medical Screening Board. Soldiers that have not been medically screened and classified with appropriate limitations would not attend courses. Soldiers who have been before a medical screening board, awarded medical limitations, and allowed to retain their military occupational specialty (MOS) or are reclassified would be eligible to attend NCOES and would be required to meet course prerequisites up to the limits of their profile.

18. The PERSCOM, NCOES Branch published and distributed a policy on ANCOC and Attendance, dated 21 June 2000. This policy stated that soldiers, who have not yet attended ANCOC prior to their effective date of promotion to SFC, would be promoted "conditionally." Those who accepted a conditional promotion did so under the stipulation that they must successfully complete ANCOC to retain that promotion. Soldiers who are "no show" at ANCOC and who have already been conditionally promoted to SFC, would be administratively reduced to SSG, and their date of rank would revert to the date they were
originally promoted to SSG. Soldiers who report to ANCOC and fail to meet the enrollment requirement or who fail to meet the course's academic requirements also would forfeit their promotion list status and their conditional promotion to SFC. Soldiers who fail to complete ANCOC would have to recompete for promotion during a subsequent SFC promotion board to regain ANCOC eligibility and/or SFC. Soldiers denied enrollment, academically dismissed, or declared a no-show who felt there was either an error, injustice, or some other type of wrongdoing that contributed to their dismissal, may request reinstatement through a NCOES Reinstatement Panel. If the voting panel finds irregularities that either caused or contributed to the soldier’s dismissal, the panel can reinstate the soldier onto the SFC/ANCOC selection list.

19. An Information Paper (Subject: Procedural Guidance for the Linkage of NCOES to Promotion-ANCOC and USASMC) stated that those soldiers who, prior to 1 October 1993, failed to complete ANCOC or USASMC due to academic or disciplinary reasons, or who where denied enrollment (e.g., APFT, overweight) would not be promoted. SSGs who were released from or denied enrollment to ANCOC may apply for reinstatement to ANCOC and, if reinstated, would be promoted upon successful completion with an effective date and date of rank as
of the date of graduation. Soldiers who, on or after 1 October 1993, accepted a conditional promotion, and who were subsequently denied enrollment, declared a no-show, become academic failures, or otherwise did not meet graduation requirements, would have their promotions revoked by PERSCOM, Promotions Branch (TAPC-MSL-E) and would be administratively removed from the
centralized promotion list. De facto status would be granted and they would
retain the pay incurred from the effective date of promotion to the date the soldier was disenrolled, denied enrollment, or failed to show on the report date for that class. DOR would be that of the prior grade held. Soldiers who must terminate their course early for bona fide medical or compassionate reasons would not have their promotions revoked. However, those promotions remained conditional until completion of the required course.

20. 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.

21. 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 administered an APFT on 11 April 2000, for preenrollment at ANCOC and failed the push-up event, which precluded him from attending ANCOC. The applicant was issued a temporary profile of 131111 due to a right elbow injury, which was valid until 20 April 2000, with assignment limitations of no push-ups. The applicant was counseled by his chain of command and was administratively relieved from ANCOC due to medical reasons.

2. The applicant submitted his requested for readmission to ANCOC on 23 May 2001, through his chain of command, which recommended approval. The applicant was later issued a permanent profile of 121111, which consisted of the two-mile run and sit-ups. The applicant later requested readmission on two occasions; however, there is no evidence of record to show that his requests were finalized or forwarded through proper channels for approval.

3. The applicant's case was reviewed by the USAR AGR Enlisted Reduction Panel, which determined that the applicant should be reduced in rank for failing to meet the conditions of his promotion. The applicant was reduced on 24 January 2002, with a DOR of 11 November 1992, which was his original DOR for SSG.
4. The Board notes that the applicant attempted readmission with a permanent profile of 121111 and that PERSCOM’s new Profile Policy states that soldiers may attend NCOES course with a permanent designator of 2 (P2) with a copy of their DA Form 3349.

5. Therefore, based on the foregoing, the applicant should be reinstated to the rank of SFC/E7 with a DOR and effective date of 1 August 1999, the date of his initial promotion, conditional upon successful completion of ANCOC, entitled to all back pay and allowances, and rescheduled for attendance at the next available ANCOC in his MOS and grade.

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 August 1999, the date of his initial promotion, conditional upon successful completion of ANCOC;

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

c. by rescheduling him for attendance at the next available ANCOC for his MOS and grade.

BOARD VOTE:

__fe___ __wb___ ___be___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Fred N. Eichorn___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069036
SUFFIX
RECON
DATE BOARDED	20020910
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR AGR active duty
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 322
2.
3.
4.
5.
6.