MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 October 2002
         DOCKET NUMBER: AR2002069173

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Ms. Barbara J. Lutz		Member
Mr. Thomas A. Pagan		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: On two separate applications, in effect, correction of item 4a (Grade, Rate, or Rank) to show the entry "SGT" and item 4b (Pay Grade) to show the entry "E-5" of his DD Form 214 (Certificate of Release or Discharge from Active Duty). He also requests that he be reinstated to the rank of Staff Sergeant (SSG), removal of any derogatory information from his records, and that he be rescheduled for attendance at Basic Noncommissioned Officer Course (BNCOC).

APPLICANT STATES: In effect, that item 4a and 4b are incorrect on his DD Form 214, that he should be reinstated to SSG, that any derogatory information contained in his records be removed, and that he be rescheduled for attendance at BNCOC. He also states that he had an approved exception to policy, with a class date prior to the 10 October 2001, US Army Reserve (USAR) Army Guard/Reserve (AGR) Enlisted Reduction Panel. He further states that he arrived at BNCOC; however, he was returned to his unit because his commander refused to sign his Total Army School System (TASS) Unit Pre-Execution Checklist. In support of his application, he submits copies of his: DD Form 214; promotion orders; DA Forms 4187 (Personnel Action); and an e-mail notification.

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

He enlisted in the Regular Army on 7 December 1983, as a power generation equipment repairer. He was promoted to sergeant (SGT/E-5) effective 1 July 1987, with a (DOR) of 28 June 1987.

On 25 June 1991, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for making a false statement and for being AWOL from 3 to 7 June 1991. His punishment consisted of reduction to the pay grade of E-4.
The commander directed the record of punishment be filed in the performance portion of his records. He continued to serve until he was honorably discharged on 5 July 1991, in the pay grade of E-4.

Item 4a (Grade, Rate, or Rank) shows the entry "SPC" and item 4b (Pay Grade) of his DD Form 214 shows the entry "E-4." Item 12h (Effective Date of Pay Grade) of his DD Form 214 shows the entry "91 06 25" (25 June 1991).

He enlisted in the USAR on 31 March 1993, in the pay grade of E-4. He was ordered to active duty in the Army Guard/Reserve (AGR) on 8 August 1994, where he is currently serving. He was promoted to SGT on 10 December 1994.

He was promoted to SSG/E-6 effective 1 January 2000.



On 4 August 2000, the applicant submitted a request for an exception to policy for deferment from BNCOC in September 2000 until his physical profile expired.
He also requested that he retain his rank of SSG.

On 22 September 2000, the dental clinic commander prepared a memorandum, Subject: Dental Treatment, pertaining to the applicant. The commander stated that the applicant was undergoing orthodontic treatment for a severe dental malocclusion (failure of proper occlusion of the jaws, as a result of such malposition of the teeth as will interfere with the highest efficiency during the excursive movements of the jaw which are essential to the function of mastication), which required oral surgery. He also stated that the applicant's total treatment time would be approximately 30 months. The applicant was rescheduled for BNCOC at a later date.

On 2 December 2000, the applicant submitted a second request for exception to policy for deferment from active duty BNCOC. At this time, he requested that he be allowed to attend USAR BNCOC and retain his rank of SSG.

On 2 December 2000, the hospital executive officer (XO) prepared a memorandum, Subject: Exception to Policy. The XO stated that, given the medical treatment that the applicant was undergoing, it would be beneficial to the unit and the applicant if he were allowed to attend USAR BNCOC and recommended approval of his request. The applicant's request was forwarded through channels with recommendations for approval.

On 9 August 2001, the dental clinic commander prepared a memorandum for record indicating that the applicant was released from treatment during the period
1 October until 15 December 2001.

On 21 August 2001, the applicant submitted a request for attendance at BNCOC. In his request, he stated that he was cleared and released by his orthodontist to attend BNCOC between 1 October and 15 December 2001. He also stated that he was able to pass the Army Physical Fitness Test (APFT).

The applicant provided a copy of an e-mail, dated 22 August 2000, from the Army Reserve Personnel Command (AR-PERSCOM) who informed him that his request for deferment had been approved for his scheduled class date of September 2000. Another e-mail was provided, dated 10 September 2001, which stated that his DA Form 4187 was received for attendance at BNCOC during the period 1 October through 15 December 2001.

The Army Training Requirement and Resource System (ATRRS) revealed that there were no more remaining quotas for that timeframe and the applicant was rescheduled to attend BNCOC from 7 January to 8 March 2002 at Fort Jackson, South Carolina.
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 rank for failing to meet the conditions of his promotion. The panel also stated that the applicant’s recourse for appeal was to this Board.

On 14 November 2001, orders were published by the AR-PERSCOM for the applicant to attend BNCOC with a will proceed date of 5 January 2002.

On 9 January 2002, a FJ Form 350-100 (Student Disposition) was prepared pertaining to applicant. This form stated that the applicant failed to provide a copy of the Pre-Execution Checklist which was a preenrollment requirement for the course. The applicant acknowledged receipt, was counseled, and issued a copy of the letter of intent to disenroll. The school commandant stated that the applicant's commander informed the academy that he would not sign the TASS Unit Pre-Execution Checklist because the soldier had not complied with every requirement on the list within 72 hours.

The applicant was reduced to the pay grade of E-5/SGT with an effective date of 24 January 2002, and a DOR of 10 December 1994. A review of his record failed to reveal any additional derogatory information other than the 25 June 1991 record of punishment under Article 15, UCMJ.

Army Regulation 608-104 prescribes the composition of the OMPF. It states,
in pertinent part, that forms recording punishment imposed after 1 November 1982, are filed on the performance or restricted fiche of the OMPF as directed by item 5, DA Form 2627. If the Article 15, UCMJ, is wholly set aside and is filed on the Performance (P) fiche, it will be moved to the R fiche. The DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), directing the action will be filed on the R fiche. If the Article 15 is filed on the R fiche, the DA Form 2627-2 setting it aside is also filed on the R fiche. Documents accompanying Article 15s are filed on the R fiche.

Paragraph 2-4 of this regulation states that once a document is placed in the
OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.






Army Regulation 27-10, in effect at the time, prescribed the guidelines for the filing of nonjudicial punishment. Paragraph 3-3b (2) states, in pertinent part, that the decision to file the original DA Form 2627 in the OMPF will be determined by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is final and will be indicated in item 5, of the DA Form 2627.

Army Regulation 140-158 prescribes policies and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers
of the US Army Reserve (USAR). Chapter 7 governs 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.

Paragraph 7-5 of the same regulation states that the 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.

Chapter 8 of Army Regulation 140-158 pertains to promotions and NCO Education System (NCOES). Paragraph 8-19 pertains to conditional promotion to SGT through MSG. It states that under promotion procedures of this regulation, a soldier may be promoted on the condition that he or she enroll in and successfully complete the course required for that grade. If the grade requires the soldier to be a graduate of BNCOC, the soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date. An extra 12 months will be allowed for completion of each phase of BNCOC for courses with more than 2 phases.

Paragraph 8-21 pertains to authorized delays from NCOES course graduation. It states that a soldier who has been conditionally promoted must be enrolled in and graduated from an appropriate NCOES course within the period of time cited in paragraph 8-19. A conditionally promoted soldier will be authorized a delay for
enrollment in or completion of a required NCOES course when the soldier is verified as being ill, or injured to a degree that prevents enrollment or course completion, or has been approved for a delay in writing by a colonel or above in the soldier's chain of command based on documented personal reasons.
When the reason for delays ends, the soldier must be rescheduled for enrollment/completion within the period of time cited in paragraph 8-19.


Paragraph 8-22 pertains to NCOES course failure. It states, in pertinent part, that when a soldier fails to complete a required NCOES course, the soldier's name will be removed from a promotion list, and if conditionally promoted, the soldier will be reduced in accordance with paragraph 7-12d.

Training and Doctrine Command (TRADOC) Regulation 350-18 prescribes policies and defines the TASS, to include specific TASS accreditation policy
and guidance. Appendix H pertains to the TASS Unit Pre-Execution Checklist. It states that the purpose of this document is to assist the unit in preparing soldiers for school attendance, while providing one single document, with appropriate attachments, for the training institutions. This checklist will be completed by appropriate unit personnel and verified and signed by the unit commander. Soldiers reporting for training must have a signed pre-execution checklist in his/her possession. Soldiers reporting for training without the checklist signed by the soldier and unit commander will be given seventy-two hours from the report date to provide the checklist with appropriate attachments.

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 evidence of record shows that the applicant was promoted to SGT effective 1 July 1987, with a DOR of 28 June 1987. He was reduced to SPC/E-4 on 25 June 1991, and was honorably discharged on 5 July 1991, in the pay grade of E-4. The Board also notes that the applicant has failed to show, through the evidence submitted with his application, that he was advanced to E-5 prior to his discharge on 5 July 1991. Therefore, he is not entitled to correction of item 4a (Grade, Rate, or Rank) to show the entry "SGT" or correction of item 4b (Pay Grade) of his DD Form 214 to show the entry "E-5."

2. The evidence of record shows that the applicant was promoted to SSG and later requested deferment from BNCOC until his profile expired, which was unavailable for review, and that he retain his rank. A memorandum was
prepared by the dental clinic commander stating that he was undergoing dental treatment and that his total time for recovery would be approximately 30 months.
He was later rescheduled for BNCOC.

3. The applicant submitted a second request for deferment from active duty BNCOC and requested that he attend the USAR BNCOC. A memorandum was prepared by the hospital XO stating that the applicant was undergoing medical treatment and that it would beneficial to his unit and him if he was allowed to attend USAR BNCOC. His request was forwarded through channels with recommendations for approval.

4. A memorandum was again prepared by the dental clinic commander indicating that the applicant was released from treatment during the period 1 October to 15 December 2001. The applicant submitted a request to attend BNCOC during that period and indicated that he was able to pass the APFT.

5. An e-mail notification from AR-PERSCOM informed the applicant that his request for deferment had been approved for his first request. However,
his second request to attend BNCOC during the period 1 October through 15 December 2001 was unsuccessful due to no remaining quotas for that timeframe in ATRRS. The applicant was scheduled to attend active duty BNCOC at Fort Jackson, South Carolina during the period 7 January to 8 March 2002.

6. Orders were published by AR-PERSCOM for the applicant to attend BNCOC on 5 January 2002. On 9 January 2002, a student disposition form was prepared pertaining to the applicant that stated that he failed to provide a copy of his TASS Unit Pre-Execution Checklist which was a preenrollment requirement for the course. The applicant was issued a copy of a letter of intent to disenroll which he acknowledged. The applicant's commander informed the academy that he would not sign the TASS Unit Pre-Execution Checklist because the applicant had not complied with every requirement on the list within 72 hours.

7. The applicant’s case was reviewed by the USAR AGR 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 10 December 1994.

8. The applicant was promoted to SSG and, in accordance with promotion procedures, must enroll in and complete the course required for that grade. The soldier was required to be enrolled in BNCOC within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date. However, the applicant failed to meet this requirement.
Therefore, this Board does not recommend attendance at BNCOC based
on the evidence provided.

9. The applicant's records failed to contain any derogatory information other than the Article 15, UCMJ, which is filed on his Performance fiche of his Official Military Personnel File (OMPF).

10. 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.


11. 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

__kk___ ___bl___ ___tp_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069173
SUFFIX
RECON
DATE BOARDED	20021029
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR USAR
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 281
2.
3.
4.
5.
6.