PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 October 2002
         DOCKET NUMBER: AR2002071116


         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 V. O’Connor, Jr.		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen A. Heinz		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 and pay grade of sergeant first class/E-7 (SFC/E-7).

3. The applicant states, in effect, that at the time he was meritoriously promoted to SFC/E-7 under the provisions of the United States Army Recruiting Command (USAREC) Active Guard Reserve (AGR) Meritorious Promotion Program, he was informed by unit personnel officials that his promotion was not conditioned on his enrollment and completion of the Advanced Noncommissioned Officers Course (ANCOC). He claims that if he had understood that his promotion was conditional, he would have pursued orders to attend the course. He states that during his first two years on recruiting duty, his records were reviewed for promotion by AGR personnel officials, and no one ever contacted him about going to the ANCOC. He requests that his promotion to SFC/E-7 be reinstated because he has given over 28 years of service to his country, which includes combat service, and his losing his promotion is a grave injustice. In support of his application, he provides letters of support from his first sergeant, company commander, and battalion commander.

4. The applicant’s military records show that as of the date of his application to this Board, he was serving as a staff sergeant/E-6 (SSG/E-6) on active duty in
an AGR status, and was assigned to the Des Moines Recruiting Battalion,
Des Moines, Iowa.

5. Orders Number 067-2, dated 9 May 1994, issued by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, authorized the applicant’s promotion to SFC/E-7, effective 11 May 1994, in military occupational specialty (MOS) 00E (Field Recruiter). 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 would be reduced to the grade and rank held prior to the conditional promotion.

6. The record gives no indication that the applicant was ever scheduled to attend the ANCOC between 1994 when he was promoted to SFC/E-7 and
10 September 2001, which is the date the record shows he was scheduled to attend the ANCOC.

7. The applicant’s record does confirm that he underwent a Medical Evaluation Board (MEB) on 9 August 2001, and that the MEB recommended his case be referred to a Physical Evaluation Board (PEB). The record also confirms that he was pending the outcome of this disability processing through the PEB on his scheduled ANCOC start date of 10 September 2001, and therefore was ineligible to attend the course for medical reasons.

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 his promotion. The applicant was advised that his recourse for appeal was to submit an application to this Board. As a result of this action, on 19 February 2002, Orders Number 050-09, issued by PERSCOM, St. Louis, reduced the applicant from SFC/E-7 to
SSG/E-6.

9. On 25 February 2002, the applicant’s battalion commander submitted a request to this Board, asking that the applicant’s rank be reinstated. He indicated that the applicant had been meritoriously promoted to SFC/E-7 in 1994, and his promotion was not contingent on his attendance at the ANCOC. He further states that the applicant’s performance has been truly exceptional and commensurate with the performance of the best SFC’s in the battalion. He requests that this request be expeditiously processed and confirms that the applicant was diagnosed with Alzheimer’s Disease and is pending medical separation. He concludes that the applicant’s reduction was a grave injustice and must be rectified before his separation.

10. In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Enlisted Promotions, Reserve Components (RC), PERSCOM, St. Louis. This RC promotion official indicates that the applicant was pending the outcome of disability processing through the PEB at the time the request for reduction orders was forwarded to PERSCOM, St. Louis. He further opines that the reduction request never should have been initiated until a final decision was rendered in regard to the applicant’s medical status. Finally, he recommends that the applicant’s rank of SFC/E-7 be reinstated for this reason. The applicant was provided a copy of this advisory opinion, and on 17 September 2002, he provided his concurrence with its findings and recommendations.

11. Army Regulation 140-158 prescribes the policy and procedure for the classification, advancement, promotion, reduction, and grade restoration of applicable United States Army Reserve (USAR) personnel. Chapter 4 contains the policy, procedure, and criteria for the promotion of soldiers serving in an AGR status. 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.

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12. 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.

CONCLUSIONS:

1. The Board notes the applicant’s claim that the revocation of his promotion to SFC/E-7 was unjust based on his overall record of service, and while the Board does not find this factor provides a sufficient evidentiary basis for the requested relief, it does find other factors that support granting the applicant’s request that his rank and pay grade of SFC/E-7 be reinstated.

2. The evidence of record is unclear in regard to what the ANCOC requirements were in the USAREC AGR Meritorious Promotion Program policy in effect at the time of the applicant’s meritorious promotion. However, it is clear that his promotion order stipulated that his promotion was conditioned on his completion of the ANCOC.

3. Notwithstanding the factors outlined in the preceding paragraph, the Board finds no evidence that suggests that the applicant bears any of the fault for his failure to attend and complete the ANCOC between the time he was promoted in 1994, and the time he was finally scheduled to attend the ANCOC in 2001. The record is void of any indication that his USAREC chain of command or AGR personnel officials ever attempted to clarify what his NCOES promotion requirement was or to schedule him for attendance at the ANCOC prior to his being scheduled to attend a September 2001 ANCOC class.

4. In addition, the governing regulation provides provisions for a conditionally promoted soldier to 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. In this case, the record clearly establishes that the applicant was pending the outcome of the PEB process on the date he was scheduled to attend the ANCOC in September 2001. Therefore, he was medically ineligible to attend the ANCOC and he should have been authorized a delay in the completion of the ANCOC pending the outcome of the medical processing.

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5. In view of the facts of this case, the Board concurs with the conclusion of the PERSCOM, Chief, RC Promotions, which is that the revocation of the applicant’s promotion should never have been requested given he was pending the outcome of the PEB process at the time, and with his recommendation that the applicant’s rank of SFC/E-7 be reinstated. Therefore, the Board finds that it would be appropriate to reinstate the applicant’s rank to SFC/E-7 and to provide him any back pay and allowances due as a result.

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 be corrected by showing that the individual concerned was granted a authorized delay for the NCOES class completion requirements of his conditional promotion and a medical deferment from attendance at his September 2001 ANCOC class; by reinstating his promotion to SFC/E-7, effective 11 May 1994; and by providing him any back pay and allowances due as a result of this reinstatement.

BOARD VOTE:

__RVO__ __BJE__ __KAH__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond V. O’Connor, Jr.___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071116
SUFFIX
RECON
DATE BOARDED	2002/10/24
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 308	129.0600
2.
3.
4.
5.
6.