PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002069572


         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. Raymond J. Wagner		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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 her promotion to sergeant first class/E-7 (SFC/E-7) and to the Advanced Noncommissioned Officer Course (ANCOC).

3. The applicant states, in effect, that she was unable to attend her scheduled ANCOC class in September 2001 because of health problems, and that administrative errors contributed to her failure to complete the course within the stipulated timeframe after being conditionally promoted to SFC/E-7. She claims that she had knee surgery in April of 2000, and in May 2000, she was selected for promotion to SFC/E-7. She was automatically given an ANCOC class date of June 2000; however, she was unable to attend because she was on a temporary physical profile because of her knee injury. She informed her immediate supervisor, who informed the battalion Schools Noncommissioned Officer (NCO), and her ANCOC class date was cancelled. Shortly after, on 21 August 2000, her temporary medical profile was replaced with a permanent medical profile. She was then informed that she had to extend to have 12 months remaining in order to attend school, and in order to extend she would have to take the Army Physical Fitness Test (APFT). She took the APFT in August 2001, passed it, but injured her lower back. She was again placed on a temporary physical profile, which prevented her from attending her September 2001 ANCOC class. She patiently waited for a new school date, and in October 2001, she submitted a request for a class date through her battalion Schools NCO. She and her supervisor continued to contact him to get a class date, and were under the impression that she would get a class date somewhere between February and March 2002. However, in January 2002, she was informed that she had failed to attend the ANCOC in the stipulated timeframe and that she was being reduced for failing to meet the conditions of her promotion. She concludes by indicating that she is now physically able and ready to attend the ANCOC as soon as possible. In support of her application, she provides a memorandum from her battalion commander, and medical records to support her contentions.

4. The applicant’s military records show that as of the date of her application to this Board, she was serving as a staff sergeant/E-6 (SSG/E-6) on active duty in an Army Guard/Reserve (AGR) status, and was assigned to the Raleigh Recruiting Battalion, Raleigh, North Carolina.

5. In April 2000, the applicant was on a temporary physical profile based on a knee injury that required surgery. On 21 August 2000, the temporary profile was changed to a permanent profile.

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6. Orders Number 333-6, dated 28 November 2000, issued by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, authorized the applicant’s promotion to SFC/E-7, effective 1 October 2000. This order also contained special instructions indicating that those members accepting a conditional promotion and who are subsequently denied enrollment, declared a no-show, become an academic failure or otherwise do not meet graduation requirements of the required Noncommissioned Education System (NCOES) course will be reduced to the grade and rank held prior to the conditional promotion.

7. On 4 January 2001, the applicant received a low back injury and was placed on a temporary physical profile until receiving a permanent profile on 16 July 2001. On 8 August 2001, the applicant was injured while taking the APFT and was placed on limited physical activity profile for 30 days by competent medical authority. As a result, the applicant failed to attend her scheduled 2 September 2001 ANCOC class, and was subsequently declared a no-show. On 4 October 2001, the applicant submitted a Personnel Action Request (DA Form 4187) requesting an ANCOC class date.

8. On 15 January 2002, the applicant was advised that the 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 her promotion. The applicant was advised that her recourse for appeal was to submit an application to this Board. As a result of this action, on 19 February 2002, Orders Number 050-13, issued by PERSCOM, St. Louis, reduced the applicant from SFC/E-7 to
SSG/E-6.

9. On 14 February 2002, the applicant’s battalion commander submitted a request to this Board, asking that the applicant’s rank be reinstated and that she be allowed to attend the ANCOC at the earliest opportunity. The commander stated that the applicant was delayed from attending the ANCOC first because of health problems and second because of administrative errors by his battalion staff, and that her failure to attend the ANCOC was through no fault of her own.

10. The packet submitted by the applicant’s battalion commander also includes confirmation of the applicant’s medical problems between April 2000 and August 2001, and a medical document that verifies that she was placed on a temporary physical profile on 8 August 2001, which prevented her attendance at her scheduled September 2001 ANCOC class.

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11. The battalion commander also states emphatically that the applicant was not a no-show at the 2 September 2001 ANCOC class as some records seem to indicate, and that at the time she was medically unable to attend the ANCOC. He claims that unfortunately this was not properly communicated to the proper authority by his headquarters staff. He finally indicates that the applicant is now ready to attend the ANCOC and is physically fit and can pass the APFT within the parameters of her permanent physical profile. He urges the Board to reconsider the decision to reduce the applicant, who he claims is an excellent NCO and recruiter. He further states that she should not be penalized for her health problems over the past 22 months and/or for the administrative errors committed by his headquarters staff.

12. In connection with the processing of this case, an advisory opinion was requested of and received from the responsible ARPERSCOM personnel official. The official recommended that the Board disapprove the applicant’s request because she failed to comply with the conditions of her promotion by being declared a no-show at her scheduled September 2001 ANCOC class on the Army Training Requirements and Resources System (ATARRS). It further indicated that conditionally promoted soldiers will be authorized a delay in completing their NCOES requirement if a colonel or above in the chain of command documents in writing that the delay was due to a documented temporary hardship, pregnancy, unresolvable employment conflict, or personal reasons. On 6 August 2002, the applicant was provided a copy of this advisory opinion in order to have the opportunity to respond. To date, she has failed to reply.

13. Army Regulation 140-158 prescribes the policy and procedure for the classification, advancement, promotion, reduction, and grade restoration of applicable USAR personnel. Chapter 8 contains guidance on promotions and the Noncommissioned Officer Education System (NCOES). It provides for the conditional promotion of soldiers to SFC/E-7 and who have not completed or attended the ANCOC. These soldiers are promoted conditional upon their completion of ANCOC. It specifies that soldiers will be enrolled in the ANCOC within 12 months of promotion and within 24 months of the phase 1 completion date.

14. Paragraph 8-21 of Army Regulation 140-158 contains guidance on authorized delays of NCOES graduation. It states, in pertinent part, that a conditionally promoted soldier will be authorized a delay in enrollment in or completion of an NCOES course when the soldier is verified as being ill or injured to a degree that prevents enrollment or course completion.

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CONCLUSIONS:

1. The Board notes the applicant’s contention that her promotion was revoked and her name removed from the SFC/E-7 promotion and ANCOC selection list due to her medical condition and administrative errors that were through no fault her own, and it finds these claims have merit.

2. The Board concurs with the comments made in ARPERSCOM advisory opinion regarding authorized delays for conditionally promoted soldiers not completing an NCOES requirement. However, it notes that the advisory opinion failed to address the provision of the governing regulation that authorizes conditionally promoted USAR soldiers a delay in enrollment in or completion of an NCOES course when the soldier is verified as being ill or injured to a degree that prevents enrollment or course completion. Therefore, it does not concur with the advisory opinion recommendation that the applicant’s request be disapproved.

3. The evidence of record and the applicant’s battalion commander confirm that she was on a valid temporary physical profile that prohibited her attendance at the scheduled ANCOC class in September 2001. Although it appears that the applicant’s medical status was never properly reported to the appropriate officials prior to her scheduled ANCOC class date, in the opinion of the Board, this does not detract from the validity of the request. The failure to properly report the applicant’s medical status and obtain an authorized delay in her school attendance was the result of administrative errors on the part of unit administrative personnel, and was through no fault of her own. The applicant attempted to obtain a new class date with the support of her chain of command and this request was never considered or acted on by the proper authority.

4. Therefore, the Board concludes the applicant was inappropriately categorized as a no-show at her scheduled September 2001 ANCOC class through no fault of her own. Further, in the interest of equity, it finds that any resultant actions taken, to include the applicant’s administrative reduction from SFC/E-7 to
SSG/E-6 should be corrected at this time, and she should be scheduled to attend the ANCOC at the earliest opportunity.

5. 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 authorized delay for the NCOES class completion requirements of her conditional promotion and a medical deferment from attendance at her September 2001 ANCOC class; by reinstating her promotion to SFC/E-7, effective 1 October 2000; by providing her any back pay and allowances due as a result of this reinstatement; and by scheduling her for attendance at the next available ANCOC class.

BOARD VOTE:

__RJW__ __RWA__ __JTM__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___ Raymond J. Wagner _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069572
SUFFIX
RECON
DATE BOARDED	2002/10/10
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. 308	129.0600
2.
3.
4.
5.
6.