PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 30 JULY 2002
         DOCKET NUMBER: AR2002069210


         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas Lanyi		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 on the sergeant first class (pay grade E-7) promotion list and that he be permitted to attend the ANCOC (Advanced Noncommissioned Officer Course). The applicant states, in effect, that his name was removed from the E-7 promotion list after he failed to pass the APFT (Army Physical Fitness Test) in preparation for attendance at the ANCOC. He notes that he was treated for flu like symptoms on 11 December 2000 but was still suffering from the effects when he failed the APFT on 20 December 2000. He states that in spite of being ill he attempted to pass the test on
28 December 2000 and again on 2 January 2001, but was not successful. He states that he did pass the test on 31 January 2001. In support of his request he submits copies of his medical treatment forms, copies of his performance evaluation reports, and a copy of his request for reinstatement on the promotion list and to attend the ANCOC, which was denied.

3. Records available to the Board indicate the applicant entered active duty in 1982 and has served continuously. He was promoted to pay grade E-6 in September 1993. His performance evaluation reports note that he was a solid performer, received successful ratings in area of physical fitness and military bearing, and consistently passed the APFT. A 1989 performance evaluation report noted that the applicant "motivates, squad in APFT with enthusiastic attitude." A June 1992 report indicated the applicant "integrated principals of Master Fitness into the company Physical Training Program." His February 1997 report indicated he "demonstrated excellent physical health & emotional stability" and a February 2000 report noted that he "consistently surpassed Army standards for APFT." A June 2000 report indicated he passed an APFT in April 2000.

4. The applicant was considered and selected for promotion to pay grade E-7 in September 2000. He was scheduled to attend the ANCOC commencing on
3 January 2001.

5. Medical documentation, provided by the applicant, indicates he was seen by medical personnel on 11 December 2000 and placed on quarters for 48 hours. On 20 December 2000 the applicant attempted to pass an APFT, but failed. Medical treatment forms note he was seen by medical officials on 20 December and placed on quarters for 48 hours. The applicant attempted to pass the APFT again on 28 December 2000, but failed. His medical treatment form notes he was placed on quarters for 48 hours on 28 December. On 3 January 2001 the applicant once again attempted to pass the APFT, but failed. Medical documentation confirms medical personnel saw him on 3 January. On
10 January 2001 the applicant's battalion command sergeant major submitted a memorandum to the U.S. Total Army Personnel Command requesting revocation of the applicant's promotion for "failing record APFT…."

6. On 31 January 2001 the applicant passed the APFT. However, a 1 February 2001 memorandum from officials at the U.S. Total Army Personnel Command (PERSCOM) informed the applicant that his name had been administratively removed from the E-7 promotion list for failing to attend his scheduled ANCOC due to his APFT failure. As a result of his removal from the E-7 promotion list, orders (dated 11 December 2000) promoting the applicant to pay grade E-7 (with an effective date of 1 January 2001) were revoked. The revocation order was dated 1 February 2001.

7. On 20 February 2001 the applicant initiated a request to have his name reinstated on the promotion list and that he be allowed to attend ANCOC. He cited his medical issues as the basis for failing the APFT. The applicant's unit first sergeant supported his request, as did his brigade command sergeant major and brigade commander. The applicant's battalion command sergeant major and battalion commander did not support his request. The applicant's battalion command sergeant major made no comments on his recommendation to deny the applicant's petition. However, the battalion commander noted the applicant "never once alerted his chain of command regarding his illness" and that he "never requested…a deferment due to illness." She indicated that while she empathized with the applicant's "subsequent hardship, there is no action taken by this command deemed procedurally wrong."

8. The applicant's petition for reinstatement was ultimately denied. In a 30 May 2001 memorandum the Chief, Training Analysis Management Branch noted that "all matters submitted in extenuation and mitigation were taken in consideration" and that the "submitted reason did not warrant reinstatement or reversal of the decision regarding" the applicant.

9. A February 2001 performance evaluation report and a May 2001 report both indicate the applicant passed the APFT; once in January 2001 and again in May 2001.

10. Army Regulation 600-8-19 prescribes the policy for enlisted promotions. It provides for the conditional promotion of soldiers whose sequence numbers are reached for promotion to pay grade E-7 and who have not completed or attended ANCOC. It furthers provides that soldiers who are "defined as failing to attend, having failed to complete for cause or academic reasons or being denied enrollment to the required NCOES [Noncommissioned Officer Education System] course for cause" will have their names administratively removed from the centralized promotion list. If the soldier has been conditionally promoted they will also be administratively reduced in grade.

11. The Army's ANCOC general attendance policy, outlined by the NCOES branch at the PERSCOM, states that soldiers who, on or after 1 October 1993, accept a conditional promotion, and who are subsequently denied enrollment, declared a no-show, become academic failures, or otherwise do not meet graduation requirements, will have their promotions revoked by PERSCOM and will be administratively removed from the centralized promotion list. De facto status will be granted and they will 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. The deferment policy outlined indicates that requests for deferment may be considered for medical or compassionate reasons. Further, the NCOES policy indicates that soldiers declared a no-show, who feel there was an error, injustice or some other type of wrongdoing that contributed to this status, may request reinstatement through the PERSCOM's NCOES Reinstatement Panel. If the voting panel finds irregularities, it can reinstate the soldier's name on the promotion selection list and reschedule attendance at the ANCOC.

CONCLUSIONS:

1. The evidence available to the Board suggests that the applicant was a soldier who had consistently passed his APFT until 20 December 2000 when he failed three consecutive tests, which were apparently administered in preparation for his attendance at ANCOC. The medical treatment forms, provided by the applicant, confirm that he was ill enough on 20 December and 28 December 2000 to require 48 hours of quarters, and to seek medical attention on 2 January 2001. The evidence also shows that the applicant passed the APFT on
31 January 2001 and again in May 2001.

2. While the applicant's chain of command may have taken no action "deemed procedurally wrong," the evidence clearly shows that his three consecutive failures over a two-week period were inconsistent with his usual level of physical fitness. Although the applicant should have raised the issue of his illness as a basis to explain the APFT failures, his chain of command should also bear some responsibility for not seeking some sort of explanation for the failures, which were inconsistent with his past performance.

3. The Board concludes, based on the available evidence, that the applicant was likely trying desperately to pass the APFT in order to report to the ANCOC as scheduled and may not have been aware of the ramifications of not reporting. Had he been aware that he could have asked for a temporary deferral until his medical issue resolved, the Board is convinced he would have done so. As such the Board concludes, in the interest of justice and equity, that revocation of the applicant's promotion, and his removal from the promotion and the ANCOC selection list, should be corrected at this time.

4. 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 be corrected:

a. by showing that the individual concerned was granted a temporary medical deferment from attending his January 2001 ANCOC class;

b. by reinstating his conditional promotion to pay grade E-7 effective
1 January 2001;

c. by providing him any back pay and allowances due as a result of reinstating this promotion; and

d. by reinstating him on the ANCOC list and scheduling him for attendance at an ANCOC class as soon as possible.

BOARD VOTE:

___AAO _ __KAH__ ___TL___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Arthur A. Omartian____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069210
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020730
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.