MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 June 2002
         DOCKET NUMBER: AR2002071512

         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:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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, that he be reinstated to the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES: In effect, that inappropriate actions were taken by the Chief, Military Personnel Division (MPD), Carlisle Barracks, Pennsylvania, and medical authorities to change his medical profile, without conducting an appropriate medical examination of his lower extremities. He claims that the record reflects that based on a medical diagnosis for a condition that impaired his ability to attend the Advance Noncommissioned Officer Course (ANCOC), his conditional promotion to SFC/E-7 was reinstated in June 1999, in direct contravention with the desires of the Chief, MPD. Subsequent to this medical diagnosis, medical authorities changed the profile without due process based on a request of the MPD Chief. He comments that he lacked counsel on the implications of his succumbing to pressure from the MPD Chief to sign a statement declining attendance at the ANCOC. In support of his application, he provides the following documents: a chronology of events; the paperwork restoring his conditional promotion to SFC/E-7, dated in June 1999; a promotion revocation packet with medical profile; an MPD journal regarding their attempts to change his profile and revoke his promotion; a Congressional inquiry; and medical findings since retirement.

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

On 30 June 2000, he was released from active duty (REFRAD) for the purpose of retirement, while serving in the rank and pay grade of staff sergeant/E-6 (SSG/E-6) and the military occupational specialty (MOS) 71L (Administrative Noncommissioned Officer). At the time of his separation, he had completed a total of 20 years, 3 months, and 12 days of active military service.

On 22 April 1996, the applicant was issued a Physical Profile (DA Form 3349) by medical authorities at Carlisle Barracks, Pennsylvania, that gave him a permanent 3 (P-3) profile in his lower extremities due to a chronic left foot pain medical condition. The assignment limitations listed in this document were no running for the timed Army Physical Fitness Test (APFT), but it was stipulated that he was able to do an alternate walk. It also confirmed that the applicant was capable of performing the duties of his MOS.

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Orders Number 289-18, dated 15 October 1996, issued by the Total Army Personnel Command (PERSCOM), Alexandria, Virginia, authorized the applicant’s promotion to SFC/E-7, effective 1 November 1996. 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 to complete the NCOES course.

The applicant attended ANCOC (71L) class 4-98, from 12 January 1998 through 10 October 1998. A Service School Academic Evaluation Report (AER), dated 11 February 1998, confirms that he failed to meet course standards and was academically eliminated from the course due to multiple test failure. He was subsequently notified by the Chief, Enlisted Promotions Branch, Total Army Personnel Command (PERSCOM), Alexandria, Virginia, that based on his academic failure of the ANCOC, his name had been administratively removed from the promotion list and his conditional promotion to SFC/E-7 had been revoked.

On 4 February 1999, the applicant submitted a request for reinstatement to SFC/E-7 and attendance at the ANCOC with the strong support of his chain of command. His stated reason was that the medical condition that resulted in his previous academic failure had been overcome and he would now be able to successfully complete the course. He explained the medical treatment he had received that improved his condition to the point that he felt able to successfully complete the ANCOC. In support of this request, he provided supporting documents from medical officials explaining his condition.

On 8 June 1999, the applicant’s command was notified in a memorandum from the Chief, Accessions Management Branch, PERSCOM, that the Department of the Army (DA) NCOES reinstatement panel had determined his promotion to SFC/E-7 should be reinstated and he should be scheduled to attend the ANCOC at the earliest opportunity.

Orders Number 161-2, dated 10 June 1999, reinstated the applicant’s promotion to SFC/E-7, effective 1 November 1996. The additional instructions contained in the orders also stipulated that the promotion was conditional upon his successful completion of the ANCOC; and on 18 August 1999, the applicant was scheduled to attend the ANCOC class 510-71L40, from 19 September through 28 October 1999.

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On 25 October 1999, the applicant submitted a Personnel Action (DA Form 4187) requesting that he no longer be considered for attendance at the ANCOC. He indicated that he felt he could not successfully complete the course based on a recently medically diagnosed condition of tendonitis in both knees and because he was on his 6^th medication for depression which required close monitoring by a psychiatrist. He also included his acknowledgment that this request could result in the revocation of his conditional promotion to SFC.E-7 and result in his retiring on 30 June 2000 upon completing 20 years of service.

A Physical Profile (DA Form 3349), dated 24 January 1999, confirms that the applicant was given a permanent profile of 2 (P-2) in his lower extremities with assignment limitations that included no running or marching. This form also confirmed that the applicant was able to do an APFT that consisted of push-ups, sit-ups, and a walk.

On 14 December 1999, the applicant was notified in a memorandum from the Chief, Accessions Branch, PERSCOM, that based on his declining to attend the ANCOC, his name was administratively removed from the promotion list. As a result of his request not to be further considered for attendance at the ANCOC and this DA action to remove his name from the promotion list, the applicant’s conditional promotion to SFC/E-7 was revoked and de-facto status was granted him for the period 1 November 1996 through 25 October 1999.

On 27 March 2000, the applicant submitted a congressional inquiry to his Member of Congress requesting assistance in his being allowed to retire in the rank and pay grade of SFC/E-7 because he had a medical condition that precluded his attendance at the ANCOC. In his inquiry, the applicant alluded to irregularities in the issuing of his physical profile and claimed that when he requested removal of consideration for attendance at the ANCOC, he had assumed his request would be processed through medical channels in order for a determination to be made in regard to his capability to attend the ANCOC.

On 20 April 2000, the applicant’s garrison commander, Carlisle Barracks responded to the applicant’s Member of Congress. He indicated that the applicant’s retirement from active duty on 30 June 2000 in the rank and pay grade of SSG/E-6 was appropriate based on the Army policy regarding conditional promotions and the events that occurred since the applicant’s initial promotion on 1 November 1996. He also indicated that because the applicant’s promotion was conditioned on completion of a required course, his academic failure of this course and his later request to no longer be considered for attendance at the course, resulted in the revocation of his conditional promotion to SFC/E-7.

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In his response to the applicant’s Member of Congress, the garrison commander further explained that after the applicant’s initial failure of the course in February 1998, and the resultant promotion revocation, the applicant requested his promotion be reinstated and attendance at the next available ANCOC. This request was made with the favorable endorsement of his chain of command, and DA officials restored his rank and scheduled him for ANCOC attendance in September 1999. In October 1999, it was discovered that the applicant had been erroneously deleted from the ANCOC class he was scheduled to attend, and he was contacted by MPD officials to discuss rescheduling. At that time, the applicant indicated his desire to no longer to be considered for ANCOC attendance based on his medical and mental problems, even though his medical profile and assignment limitations did not prohibit his attendance at the ANCOC under established DA policy. He also addressed the applicant’s allegations in regard to the irregularities in the assignment of his physical profile. He commented that the applicant presented a hand-written permanent profile form to MPD officials that indicated he was give a P-3 profile in the lower extremities. The MPD officials realized that this could require the applicant to be processed through medical channels to determine his medical fitness for retention, and as a result, they contacted medical authorities telephonically. After a discussion with the clinic doctor, the MPD officials were informed that the preliminary P-3 profile given the applicant was incorrect and that a P-2 profile would be issued in its place. Ultimately, the formal DA Form 3349 confirming the P-2 profile was published by the proper medical authorities, which negated the necessity for any further medical processing.

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 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.

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The regulation further states that soldiers who fail to attend their scheduled ANCOC class for any reason other 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 contention that his promotion to SFC/E-7 should be reinstated based on inappropriate actions being taken on the part of MPD and medical officials. However, it finds insufficient evidence of record or independent evidence submitted by the applicant to support this claim.

2. The evidence of record confirms the applicant was conditionally promoted to the rank and pay grade of SFC/E-7 contingent on his completing the NCOES education requirement for promotion by successfully completing the ANCOC. It also clearly establishes that the applicant attended and failed to meet the course standards of the ANCOC, and as a result was dismissed from the class for academic reasons. This resulted in the revocation of his conditional promotion.

3. The record also reveals that upon the request of the applicant, which carried with it the support of his chain of command, in which he confirmed that he had overcome the circumstances that led to his ANCOC dismissal, DA officials approved his promotion reinstatement and attendance at the ANCOC. He was again scheduled for ANCOC based on this request, but failed to attend. The Board finds no evidence to show that the applicant suffered from a medical condition that disqualified him from attendance at the ANCOC or that he attempted to obtain a deferment from attendance based on a temporary medical condition.

4. Subsequently, the record shows that the applicant submitted a request that he no longer wished to be considered for attendance at the ANCOC. In this request, he acknowledged that he understood this could result in the revocation of his conditional promotion to SFC/E-7, and in his retiring in the rank and pay grade of SSG/E-6 upon attaining 20 years of active military service. The Board finds the applicant has failed to provide evidence that this request was not voluntarily made, coerced, or made based on improper counseling on the part of MPD or medical officials.

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5. In the opinion of the Board, notwithstanding the applicant’s claim of irregularity in the assignment of his physical profile and in his processing by personnel officials of the MPD, there is insufficient evidence to establish that there was an error or any irregularities associated with the revocation of his conditional promotion to SFC/E-7. It finally concludes that this action was properly taken based on the applicant’s failure to satisfy the NCOES prerequisites for his conditional promotion. Therefore, the Board concludes that the requested relief is not warranted in this case.

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

__FNE__ __RWA__ __HBO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071512
SUFFIX
RECON
DATE BOARDED	2002/06/11
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/06/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 322	133.0000
2.
3.
4.
5.
6.