MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2002072622


         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. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones, II		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 to sergeant first class/E-7 (SFC/E-7) with his original date of rank (DOR).

APPLICANT STATES: In effect, that he was on a medical profile before and after his failure of the annual Army Physical Fitness Test (APFT) on 3 June 1999. He also claims that he was under medical care through August 2000 when his permanent profile was completed. In addition, he contends that his previous command should have medically deferred his requirement to attend the Advanced Noncommissioned Officer Course (ANCOC) based on this medical reason.

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

The applicant’s military records show that he is currently serving on active duty, in the rank and pay grade of staff sergeant/E-6, and that he is assigned to Fort Lewis, Washington.

On 13 August 1998, Order Number 225-54, published by the Total Army Personnel Command (PERSCOM), authorized the applicant’s promotion to SFC/E-7, effective 1 September 1998. 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.

A Physical Profile (DA Form 3349) confirms that on 8 October 1998, the applicant was issued a temporary (T) profile based on a condition of vomiting associated with running. This profile indicated that the applicant could take the APFT, but that a bicycle should be substituted for running. The expiration date of this profile was listed as January 1999.

On 3 June 1999, the applicant took and failed the annual APFT. He passed the sit-up and push-up portions of the test with a score of 69 in each event. However, he scored only 36 points in the run portion of the test, which resulted in his failure of the APFT.

In late June 1999, the applicant was seen by a doctor at the Gastroenterology Service, Walter Reed Army Medical Center (WRAMC), to undergo evaluation of his exercised induced vomiting condition.

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In July 1999, the Commandant of the Noncommissioned Officer Academy, Fort Rucker, Alabama, denied the applicant enrollment in the 67T40 ANCOC, Class Number 99-503. The reason cited for this action was that the applicant had failed an APFT, which by regulation, should have resulted in the imposition of a suspension of favorable personnel actions (flagging action). In addition, by regulation a flagging action prohibits attendance at military schooling.

On 1 September 1999, the Chief, Enlisted Promotions Branch, PERSCOM, notified the applicant that based on his denied enrollment in the ANCOC due to an APFT failure, his name was removed from the SFC/E-7 promotion list.

On 1 October 1999, the applicant took and failed a second annual APFT. This time, he passed the sit-up portion of the test with a score of 65 and the
push-up portion with a score of 66. However, he again failed the 2 mile run portion with a score of 44, which resulted in his again failing the APFT.

On 4 November 1999 the applicant was issued a T2 physical profile by a physician of the Gastroenterology Service, WRAMC. This profile allowed the applicant to take the APFT with the substitution of the bicycle for the
2 mile run. On 19 November 1999, he again took the APFT for record, but this time the two mile run was not included in the test and further there was not a substitute bicycle event. On this APFT, he scored 69 points in the push-up event and 67 points in the sit-up event.

Subsequent to the completion of his gastrointestinal evaluation at the Gastroenterology Service, the applicant was referred to a physician at the Physical Medicine and Rehabilitation Service at WRAMC. On 14 July 2000, he was issued a permanent two (P2) physical profile by this physician. This permanent profile established that the applicant could take the APFT, with the substitution of the bicycle for the 2 mile run. The applicant’s unit commander completed his action on this profile on 10 August 2000.

On 14 February 2002, the applicant submitted a request to PERSCOM asking that he be reinstated to the rank and pay grade of SFC/E-7 with his original DOR, and to the ANCOC. In his request, he indicated that he believed that the cause of all his problems was his medical condition (Running Induced Emesis), a condition that causes him to vomit when he runs. He indicated that had this condition not been present, none of the other actions would have occurred. He further indicated that prior to his attempted attendance at the ANCOC, he had been working with a doctor at the WRAMC regarding his condition. However, as a result of scheduling problems, work schedules, and appointment availability, his temporary profile expired. Because a record APFT taken within 60 days of attendance was required for him to attend the ANCOC, he took the APFT on
3 June 1999, and he failed the 2 mile run portion of the test, which resulted in his failure of the record APFT.
In his reinstatement request to PERSCOM, he also claimed that his command failed him in many ways in regard to his attendance at the ANCOC. First, they failed to recognize his medical condition and take normal steps to ensure he was medically able to take the APFT. Second, when he took the test and started vomiting, a test administrator should have stopped his test and referred him for medical treatment. Third, he should have been flagged immediately after his APFT failure, and placed into a remedial physical fitness program. Finally, his chain of command, specifically the senior NCO leadership, should not have allowed him to physically report to the ANCOC, knowing that his APFT failure would result in his being denied entrance into the class. Instead, they should have assisted him in obtaining a deferment from attendance at the ANCOC until his medical problems could be worked out and/or he passed an APFT. He also indicated that his command perpetuated this injustice on him and the Army.

The applicant concluded his reinstatement request to PERSCOM by commenting that the Baltimore Recruiting Command, his unit, failed him and the Army by failing to abide by Army regulations, policies, and procedures. Further, it failed in its obligation to assist him to develop as a NCO, an obligation that would have been met in any normal Army unit. In addition, he stated that the reason it took him so long to step forward to address this problem, submit his request for reinstatement, was that he was unwilling to subject himself or his family to the repercussions that would have been visited on him by his superiors had he attempted to appeal this injustice to anyone outside the Baltimore Recruiting Command. He concluded that the submission of his appeal closely coincided with his departure from the recruiting command, and his return to the mainstream Army.

In support of his request for reinstatement, he provided a memorandum from the physician from the Gastroenterology Service, WRAMC. This doctor confirmed that the applicant had first been presented to him in late June 1999 for evaluation of an exercised induced emesis, which he had suffered since 1985. He described the condition and explained evaluation steps he took. He also indicated that it appeared that the applicant’s temporary physical profile that expired in January 1999 was not appropriately extended even though the applicant’s medical condition had not been addressed due to the applicant’s pending appointment with him. He commented that the proper action would have been to extend the applicant’s temporary profile until the medical evaluation was completed. The physician also indicated that subsequent to his completing the evaluation, the applicant was referred to a physician in the Physical Medicine and Rehabilitation Service, WRAMC, who provided the applicant with a permanent profile and established an appropriate and graduated exercise program to incrementally overcome his condition. Finally, this doctor commented that it was his opinion that the applicant was an exemplary soldier who reflected well on the Army, and that it was his opinion, that he should be reinstated to his prior rank.
In support of the applicant’s appeal to the NCOES Reinstatement Panel, the applicant’s colonel commander submitted a memorandum recommending that the applicant’s appeal be approved. The commander stated that the applicant was a highly motivated and outstanding NCO, with a long successful career in the aviation field. He also stated that the applicant constantly displayed the highest degree of professionalism and technical competence, which are above reproach. Finally, the commander stated that it was his belief that the Baltimore Recruiting Battalion performed an injustice to both the Army and the applicant, and reinstating him to SFC/E-7 and the ANCOC would go a long way toward correcting this injustice and serve the needs and interests of the Army and the command.

On 10 April 2002, the Chief, Training Analysis Management Branch, PERSCOM, notified the applicant’s commander that the applicant’s request for reinstatement was returned without action. The reason cited was that the applicant had exceeded the two year statute of limitations for application to the PERSCOM NCOES Reinstatement Panel. This notification also advised the applicant that any further appeal should be forwarded to this Board.

Orders Number 163-0018, dated 12 June 2002, issued by Headquarters,
I Corps, Fort Lewis, Washington, authorized the applicant’s release from active duty on 31 October 2002 and his placement on the Retired List on 1 November 2002. This order also identified the applicant’s retired grade as SSG/E-6.

PERSCOM NCOES Branch also provides guidance on the Army’s ANCOC general attendance policy that 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. Further, the policy specifies that a member must meet Army height and weight standards and APFT standards in order to attend a NCOES course. 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.

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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 he was on a medical profile before and after his failure of the annual APFT on 3 June 1999, his claim that he was under medical care through August 2000 when his permanent profile was completed, and his assertion that his previous command should have medically deferred his requirement to attend the ANCOC based on this medical reason. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.

2. By regulation, members conditionally promoted will have their promotions revoked and their names removed from the centralized list if they failed to meet the NCOES requirement. Further, soldiers must meet the Army weight standard and APFT standard in order to attend a NCOES course. 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.

3. The evidence of record confirms that the temporary physical profile issued to the applicant on 8 October 1998, expired in January 1999. It further shows that at the time he took and failed the APFT in June 1999, the applicant did not possess a valid Physical Profile (DA Form 3349).

4. The applicant properly points out that his unit should have placed him under a FLAG action based on his APFT failure, and that he should not have been allowed to attend his scheduled ANCOC class. However, this failure does not change the fact that he failed to meet the APFT standard required for attendance at the ANCOC. As a result, he would still have been declared a no-show at his scheduled class based on his failure to meet this standard, and his conditional promotion would still have been revoked based on his failure to complete the NCOES requirement. Thus, the Board finds the unit’s failure to properly FLAG the applicant and prevent his attendance at the ANCOC class would not have changed the final outcome in this case.

5. The Board also finds no evidence to show that the applicant ever addressed his medical issues to anyone in his chain of command at the time he was scheduled to attend the ANCOC or that he took the necessary steps to be placed on a valid medical profile that would have resulted in his medical deferment from the course. Therefore, notwithstanding his medical situation, the Board finds no error or injustice related to his not being granted a medical deferment from the ANCOC class in question.

6. In addition, the Board finds no valid reason for the applicant’s delay in submitting his request for reinstatement to the PERSCOM Reinstatement Panel. There is no credible evidence of record or independent evidence to support his assertion that he would have faced repercussions from his chain of command had he attempted to appeal the action to an authority outside of the command at the time.

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

___FCJ__ _LLS____ __LE__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072622
SUFFIX
RECON
DATE BOARDED	2003/05/29
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. 192	110.0300
2.
3.
4.
5.
6.