MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 October 2002
         DOCKET NUMBER: AR2002069175

         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:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Margaret K. Patterson		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, back pay and allowances from 24 January to 1 June 2002, due to his administrative reduction to staff sergeant (SSG/E-6) and re-promotion to sergeant first class (SFC/E-7). He also requests that his date of rank (DOR) for SFC be adjusted from 1 June 2001 to 1 October 1994.

APPLICANT STATES: In effect, that he was administratively reduced by a US Army Reserve (USAR) Army Guard/Reserve (AGR) Enlisted Reduction Panel
for failing to meet the conditions of his promotion to SFC. He also states that his DOR for SFC should be adjusted to his original DOR of 1 October 1994. He also states that a lack of evidence was submitted to the USAR AGR Enlisted Reduction Panel on his behalf. The notification that he received did not cover what was required for this type of action, nor was he provided references, and was given only 11 working days to respond. He goes on to state that the panel indicated that his profile did not indicate that he could not do physical training
(PT) and that he was a "No Show." In support of his application, he submits copies of: an e-mail notification, dated 19 September 2001; Enlisted Reduction Panel results and comments; references from regulations; and a DA Forms 3349 (Physical Profile).

The applicant also submits a memorandum, dated 4 February 2002. He states
that his medical condition began in January 1991, and he was treated by physicians over several years. He received several different diagnoses on his condition and was placed on different medications. Physicians later determined that it would take clinical correlation to effectively treat his condition. While he was being diagnosed, he was promoted to SFC, and was scheduled for ANCOC in March 1995. He and his physician, at that time, had concerns about him attending ANCOC due to his condition. He also expressed concerns to his career manager at the US Army Reserve Personnel Command (AR-PERSCOM) and was informed that if he did not attend ANCOC his promotion would be revoked. He attended ANCOC and was disenrolled due to his medical condition which prevented him from completing course requirements. He was advised to request an exception to policy which was submitted and approved. He was later diagnosed as having an irritable bowel syndrome (IBS). He received notice in February 1996 to attend ANCOC in April 1996. His physician recommended that he not attend at that time. The message was relayed to his career manager on 27 March 1996; however, his career manager explained to him that he was directed to enroll him in ANCOC and that his temporary profile would expire before class. He also states that his career manager needed updated information prior to his start date of class and that the results would be faxed to him. He was issued a temporary profile on 22 April 1996, which was valid until 31 July 1996. He continued to be evaluated by his physician for his condition. AR-PERSCOM requested an update of the applicant's status and was informed
that he was being seen by another physician, who also diagnosed him as having IBS, and that he continues to be treated for this condition.

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

He is currently serving in the AGR Program with the 308^th Quartermaster Company, as a motor sergeant. He was promoted to SSG/E-6 on 1 October 1990.

On 30 August 1992, a DA Form 3349 was prepared, which issued the applicant a permanent physical profile of 221111 due to myofascial (combining form denoting relationship to muscle) pain right trapezius (muscle) and partial fusion (union, as by joining together) to his right wrist. It also indicated that he may walk, swim, or bicycle for the Army Physical Fitness Test (APFT). He was allowed to walk, run, and bicycle at his own pace and distance, swim at his own pace and distance, and walk or run in a pool at his own pace. He was permitted unlimited walking, swimming, and bicycling.

The applicant was conditionally promoted to SFC/E7 on 1 October 1994.

The applicant's DA Form 1059 (Academic Evaluation Report), dated 23 March 1995, for the period 20 to 23 March 1995, shows in item 16 (Comments) that the applicant was disenrolled due to a medical condition which prevented him from completing course requirements.

On 3 April 1995, the applicant submitted a request for an exception to policy due to his disenrollment, through no fault of his own, for a medical condition which prevented him from completing course requirements. His request also stated that his physician was treating his condition. He specifically requested that he
be provided the appropriate timeframe for completion of ANCOC until his condition was resolved and rescheduled for ANCOC in accordance with Army
Regulation 351-1. His request was indorsed and approved through channels.

On 22 April 1996, a DA Form 3349 was prepared, which issued the applicant a temporary profile of 122111 due to IBS, nonspecific colitis (inflammation of the colon). This profile was valid until 31 July 1996, and indicated that the applicant may walk, swim, or bicycle for his APFT. It also indicated that he may walk, run, or bicycle at his own pace and distance and walk or run in pool at his own pace.

The applicant provided a copy of an e-mail, dated 19 September 2001, from
AR-PERSCOM who informed him that his records would appear before a USAR AGR Enlisted Reduction Panel for not meeting the NCO Education System (NCOES) requirement for his conditional promotion. He was also informed that he may submit rebuttal evidence.



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 applicant’s recourse for appeal was to this Board. The panel stated in their comments that there was no profile indicating that the soldier could not do PT and that there was no evidence of a "physical board." The panel further indicated that the applicant was granted an exception, rescheduled, was a "No Show", and was informed in writing that he was not medically fit.

The applicant was reduced to the pay grade of E-6/SSG with an effective date of 24 January 2002, and a DOR of 1 October 1990.

The applicant was conditionally re-promoted to SFC/E7 on 1 June 2002.

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.

Paragraph 8-19 of the same regulation 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 ANCOC, the soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of ANCOC within 24 months of the Phase I completion date. An extra 12 months will be allowed for completion of each phase of ANCOC 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. It also states that if the failure is a result of a delay cited in paragraph 8-21, no adverse action would be brought against the soldiers. The soldier should be reenrolled as soon as possible after the reason of the delay has been satisfied. It also stated that a soldier would be eliminated from a course because he or she failed to report as order and was declared a "No Show." If determined that the failure was the soldier's fault and there were no extenuating circumstances beyond the soldier's control which prevented him or her from reporting, the soldier is considered to be a "No Show" and would be reduced per paragraph 7-12d.

Army Regulation 351-1 provides the policy for individual military education and training. Paragraph 5-20 pertains to ANCOC. Subparagraph 5-20e pertains to scheduling and attendance procedures. It states that scheduling of soldiers selected to attend ANCOC is the responsibility of the Total Army Personnel Command (PERSCOM) appropriate career branch. Soldiers selected would be
scheduled consistent with policies specified in this regulation and appropriate assignment instructions. Once selected for attendance, and if eligibility is maintained, personnel will remain in a selected status until they have attended the course.

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 issued a permanent physical profile of 221111 on 30 August 1992, due to myofascial pain right trapezius and partial fusion to his right wrist. He was allowed to walk, swim, or bicycle for the APFT.



2. The applicant stated that his condition began in January 1991, was treated by physicians, received several different diagnoses on his condition, and was later promoted to SFC. He was scheduled for ANCOC in March 1995, and was returned due to his medical condition, which prevented him from completing course requirements.

3. The applicant requested an exception to policy due to his disenrollment and indicated that his physician was treating his condition. He requested that he be provided the appropriate timeframe for completion of ANCOC until his condition was resolved and rescheduled for ANCOC. The request was approved through channels by the appropriate authorities.

4. The applicant was diagnosed as having an IBS condition and received notice again to attend ANCOC in April 1996. His physician recommended that he not attend at that time. He was issued a temporary profile on 22 April 1996, which was valid until 31 July 1996 and allowed the applicant to walk, swim, or bicycle for his APFT. He continued to be evaluated by his physician.

5. The applicant was notified by AR-PERSCOM that his records would appear before a USAR AGR Reduction Panel for not meeting the NCOES requirements for his promotion. He was also informed that he could submit evidence to support his request. However, the applicant contends that the notification he received did not cover what was required for this type of action, nor was he provided references, and was given only 11 days to respond.

6. The Board notes that it is not AR-PERSCOM's responsibility to inform the applicant on what type of evidence would support his request, nor were they required to provide references. AR-PERSOM also noticed that his temporary profile did not indicate that he was unable to perform physical training and he was declared a "No Show."

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 1 October 1990. He was later re-promoted to SFC/E7 on 1 June 2002.

8. Based on the preponderance of evidence provided, this Board finds that no error or injustice has occurred in the applicant’s case. Therefore, there is no basis for granting the applicant’s request for back pay and allowances from 24 January to 1 June 2002, and for adjustment of his DOR for SFC from 1 June 2001 to 1 October 1994.


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

__ro____ ___ao___ ___mp__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069175
SUFFIX
RECON
DATE BOARDED	20021001
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 322
2.
3.
4.
5.
6.