MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2002071361

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Richard T. Dunbar		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, reinstatement of his promotion to sergeant first class/E-7 (SFC/E-7) and that he be permitted to attend the Advance Noncommissioned Officer Course (ANCOC).

APPLICANT STATES: In effect, that he was selected for and conditionally promoted to SFC/E-7 and scheduled to attend the ANCOC on 16 October 2001. On 11 October 2001, after he had already expressed concern to his wife in regard to his stepson driving their vehicle because he was not included in the insurance policy, he observed his stepson driving one of the family vehicles. He telephoned his wife and asked her to have her son return the vehicle to her. When she returned home, he requested the keys to the vehicle and she refused. Words were exchanged and they started to argue over the keys. He grabbed the keys from the ignition and proceeded to move her out of the driver’s seat. He began to back the car out of the driveway, unfortunately, which she was still holding on to the car door, as he was pulling away, she apparently fell and bruised her thigh. He was unaware this happened to her until he returned home later that evening. His wife went to the hospital later that evening and because the bruise looked bad, the hospital staff was required to report the incident to the police as a domestic violence issue, and even though his wife had told them it was an accident, the police needed to be notified. Due to the zero tolerance law on domestic violence in the State of Colorado, he was ticketed for 3^rd degree assault, reckless endangerment, and harassment.

On 12 October 2001, he was told by his first sergeant that he was to call the detective concerning the charges. On 13 October 2001, he went down to the police station to clear up the situation and he was then arrested and taken into custody for the night. He was given a 72 hour restraining order to stay away from his home. He had planned to drive to Fort Bliss, Texas, to attend the ANCOC, however, his preliminary hearing was set for 15 October 2001, so he purchased an airline ticket to El Paso, Texas, so he could still report to the ANCOC on time after he went to court. He asked the judge if he could still attend the ANCOC and come back for the next court date, which was 13 December 2001. The judge advised him that he would have to get approval from the court administrator, who when asked advised him that he could not leave the State because he was on a personal recognizance bond. He claims that his command sergeant major (CSM) and first sergeant (1SG) attempted to get in touch with the school, but to no avail.

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The applicant states that his actual trial date was set for 14 February 2002. However, in January 2002, he voluntarily enrolled in a 36 week domestic violence class, because he wanted to educate himself on the reasons for his actions at the time. Having the charges brought against him was an enlightening and instructive experience for him. On 14 February 2002, he plead guilty to phone harassment, which does not fall under the category of domestic violence, however, he has elected to complete his domestic violence course.

The applicant indicates that on 14 February 2002, he sent the results of his case to the reinstatement panel at Department of the Army (DA). On 27 February 2002, the reinstatement panel convened and denied his request for the reinstatement of his promotion. He comments that he thinks this entire incident was taken out of proportion, and has made him take a long hard look at what things he could have done to prevent this from ever happening. He has been a noncommissioned officer (NCO) for 12 years, and feels he has set the best example possible for his soldiers. He claims that he wants to ensure that soldiers under his leadership do not make the same mistakes he has. He often tells them that although they will certainly make mistakes, they must learn from those mistakes in order to become better soldiers. He made a mistake and learned from it, and it is certain that if he is allowed to continue to serve, he would never make the same mistake again.

The applicant indicates that he enjoys being a noncommissioned officer (NCO) because he gets to guide soldiers and give them leadership. In his 12 years of service, he has trained, led, and provided sound judgment and guidance to soldiers, because of this he was selected for promotion to SFC/E-7. Just as he fights for the rights of others as a soldier, he has the right to fight to retain his military career, which he is attempting to do at this time. In his years of service, he has never let his personal life interfere with his military status and he has no intention of ever letting this happen again.

The applicant concludes by indicating that he is a firm believer that the mission comes first and families are very important. He has been fortunate in the leadership he has received, which made him the honest, dedicated, caring, and always there for his family NCO that he is today. He asks that his promotion reinstatement to SFC/E-7 be reconsidered because he would like to show that his selection for promotion to that rank was a correct decision and not a mistake; and that regardless of whatever type mistake we make in our lives, we can learn from them and overcome them as well. In support of his application, he provides letters of support from battalion commander and command sergeant major; former battery commander and platoon leaders; two artillery first sergeants; an artillery second lieutenant; a master sergeant food service supervisor; the Fort Carson, Colorado, Department of the Army Schools NCO; and his wife.


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

The applicant’s military records show that on the date of his application to this Board, he was still serving on active duty as a staff sergeant/E-6 (SSG\E-6), at Fort Carson, Colorado.

Orders Number 284-41, dated 11 October 2001, issued by the Total Army Personnel Command (PERSCOM), Alexandria, Virginia, authorized the applicant’s promotion to SFC/E-7, effective 1 November 2001. This order also contained special instructions indicating that those members promoted to
SFC/E-7, who did not have ANCOC credit were promoted conditionally. These special instructions further indicated that those members conditionally promoted would have their promotions revoked and their names removed from the centralized list if they failed to meet the Noncommissioned Officer Education System (NCOES) requirement.

The applicant was scheduled to attend the ANCOC at Fort Bliss, Texas, on
16 October 2001, however, he was declared a no-show at the course when he failed to report on the scheduled start date of the course.

On 28 November 2001, the portion of PERSCOM Orders Number 284-41 pertaining to the applicant’s promotion was revoked in Orders Number 322-7 issued by PERSCOM. The additional instructions contained in these orders stated that the applicant had been administratively removed from the SFC/E-7 promotion list.

On 7 March 2002, the applicant’s unit commander was notified in a letter from the Chief, Training Analysis Management Branch, PERSCOM, that the applicant’s request for reinstatement to the rank of SFC was disapproved by the NCOES reinstatement panel after all matters of extenuation and mitigation were taken into consideration. The NCOES reinstatement panel had found that the reasons submitted did not warrant reinstatement or reversal of the decision regarding the applicant.

In support of his application, the applicant submitted letters of support from members and former members of his chain of command who all recommend his promotion be reinstated and that he be allowed to attend the ANCOC. These letters also indicate that the chain of command made many unsuccessful attempts to contact the school and DA in order to prevent the applicant from being categorized as a no-show.

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In a 22 March 2002, letter to this Board, the Fort Carson DA schools NCO verifies that he was contacted by the applicant’s brigade schools NCO at approximately 1400 hours on 16 October 2001, and notified that the applicant would not be able to attend his ANCOC class, which was scheduled to begin that day, because of a pending court date. He claims that after a lengthy search, on 18 October 2001, he contacted the applicant’s DA branch manager and schools NCO at PERSCOM and informed him that the applicant would not be able to attend the course. The DA branch manager explained that he had talked to the applicant’s first sergeant on 16 October 2002, and that the first sergeant had seemed unconcerned and judgmental about the situation. He informed the DA branch manager that he was still going to continue to obtain all the documentation about the situation and provide it to him. The branch manager indicated that he would see what he could do, but after being provided the necessary documentation on 20 October 2001, the PERSCOM branch manager informed the Fort Carson schools NCO that nothing could be done about the applicant’s no-show status at that time and that he may have been able to contact the school and reschedule the applicant’s class had he been contacted and informed of the applicant’s status on the morning of 16 October 2001. However, at that point there was nothing he could do and based on his no-show status, the applicant would be removed from the promotion list and not allowed to attend the ANCOC.

Army Regulation 600-8-19 prescribes the policy for enlistment promotions. It provides for the conditional promotion of soldiers whose sequence numbers are reached for promotion to SFC/E-7 and who have not completed or attended the ANCOC. These soldiers are promoted conditional upon their completion of ANCOC. It furthers provides that soldiers who fail to attend their scheduled ANCOC class for an unjustified reason will be reduced and/or removed from the promotion selection list.

The Army’s ANCOC general attendance policy outlined by the PERSCOM NCOES branch states, in pertinent part, that there is currently no deadline in determining when the soldier must attend ANCOC. However, generally a soldier is scheduled to attend the ANCOC within a year after the release of the appropriate SFC/E-7 promotion list. The deferment policy outlined indicates that requests for deferments may be considered for medical or compassionate reasons. It further states that soldiers who fail to attend their scheduled ANCOC class for any reason other than those that qualify for a deferment, and who are subsequently declared a "no-show" are removed from the centralized promotion list. Further, the NCOES policy indicates that soldiers declared a no-show, who feel there was either an error, injustice or some other type of wrongdoing that contributed to this status, may request reinstatement through PERSCOM's NCOES Reinstatement Panel. If the voting panel finds irregularities, it can reinstate the soldier onto the SFC/ANCOC selection list.

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 Board notes the applicant’s request that he be reinstated to the rank and pay grade of SFC/E-7 and that he be allowed to attend the ANCOC. In addition, it considered the letters of support for the applicant’s request submitted by members and former members of his chain of command. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.

2. The Board does not question the applicant’s sincere contrition for his actions, but by his own admission, he was involved in a domestic violence incident shortly before his scheduled ANCOC class date, which required him to appear in court. Although he was ultimately convicted of a lesser offense, this does not change the fact that this preventable conduct related incident was the reason he missed his scheduled ANCOC class date, which resulted in the revocation of his conditional promotion to SFC/E-7.

3. The evidence of record clearly shows that the NCOES reinstatement panel process was accomplished in accordance with applicable regulations and policy. It also shows that this panel had before it all matters of mitigation, extenuation, and the declared support of the applicant’s chain of command for his reinstatement request at the time it determined that promotion reinstatement and attendance at the ANCOC were not warranted.

4. The Board finds no error or injustice related to the NCOES reinstatement panel process and it concludes that the applicant’s failure to meet his scheduled ANCOC class date and the resultant revocation of his conditional promotion were due to his preventable conduct related problems at the time.

5. Further, the matters of mitigation, extenuation, and the strong support of the applicant’s chain of command, now provided to this Board for consideration by the applicant, are similar to those considered and rejected by the NCOES reinstatement panel. Therefore, in the interest of fairness to all soldiers who face similar circumstances, the Board concludes that the requested relief is not warranted in this case.

6. 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.

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7. 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

__INW__ __KAN__ __RTD___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071361
SUFFIX
RECON
DATE BOARDED	2002/06/27
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.