MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002072707

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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) and that he be paid back pay and allowances.

APPLICANT STATES: In effect, that his reduction in error and unjust, and resulted in his early retirement. He states that neither his chain of command nor he received notification from the U.S. Army Total Personnel Command (PERSCOM) that he had been scheduled to attend the Advanced Noncommissioned Officer Course (ANCOC) on a specific date. He states that he was reduced to the SSG/E-6 for missing an ANCOC class date in February 2000, despite having his attendance dated to ANCOC changed to October 2000. In support of his application, he submits a copy of his separation document
(DD Form 214), promotion orders to SFC, revocation orders for promotion to SFC, retirement orders, and his request for reinstatement into the ANCOC

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

On 31 December 2000, the applicant was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 20 years, 4 months, and 18 days of active military service.

On 14 October 1999, Order Number 287-24, published by PERSCOM, authorized the applicant’s promotion to SFC/E-7, effective 1 November 1999. 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 ANCOC class number 501-00 with a reporting date of 20 February 2000. He took and failed the Army Physical Fitness Test (APFT) and on 16 February 2000, which was identified as a test taken for the ANCOC pre-school checklist. The applicant’ unit commander initiated a Report to Suspend Favorable Personnel Actions (Flag-DA Form 268) based on this APFT failure.

Order Number 144-4, dated 7 May 2001, published by PERSCOM, revoked the applicant’s promotion to SFC/E-7. On 23 May 2000, the PERSCOM Chief, Enlisted Promotions, notified the applicant by memorandum that based on his failure to attend a scheduled ANCOC class due to an APFT failure his promotion was revoked and his name was administratively removed from the SFC/E-7 promotion and ANCOC attendance list.

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On 5 July 2000, the applicant applied to the NCOES Reinstatement Panel and requested reinstatement into the ANCOC. He outlined the same issues and contentions he has provided to this Board.

On 6 September 2000, the Chief, Training Analysis, Management Branch, PERSCOM, advised the applicant’s unit commander that the applicant’s request for reinstatement to the ANCOC was disapproved. The notification memorandum indicated only that all matters submitted in extenuation and mitigation were taken into consideration, and the submitted reasons did not warrant reinstatement or reversal of the decision regarding the applicant.

Orders Number 271-0003, dated 27 September 2000, issued by Headquarters,
U.S. Army Garrison, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, authorized the applicant’s release from active duty on 31 December 2000, and his placement on the Retired List on 1 January 2001. This order identified the applicant’s retired grade as SSG/E-6.

In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Promotions Branch, PERSCOM. It recommends that the applicant’s request for reinstatement of his promotion and back pay and allowances be denied. PERSCOM officials indicate that the applicant was conditionally promoted on 14 October 1999, and that this promotion was later revoked based on his failure to attend a scheduled ANCOC class due to a FLAG action based on his failure of a record APFT. In accordance with Army Regulation 600-8-19, paragraph 1-27, his conditional promotion was revoked and his name was removed for the promotion list. It further indicates that the applicant’s request for reinstatement to the ANCOC was disapproved by the NCOES reinstatement panel on 6 September 2000, and to reinstate the applicant’s promotion to SFC/E-7 would afford him an unfair advantage not given to other soldiers.

The applicant was forwarded a copy of the advisory opinion for his acknowledgement/rebuttal. To date, he has failed to respond.

Army Regulation 600-8-2 provides the policies on initiating, transferring, and removing a Flag action. Paragraph 1-13 provides specific circumstances that require a flagging action. This includes the failure to pass the Army Physical Fitness Test (APFT). Paragraph 1-14 contains a list of actions that are prohibited by a Flag, which includes attendance at civil or military schooling.

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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. It 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, and advisory opinion(s), it is concluded:

1. The evidence of record confirms that the applicant was conditionally promoted to SFC/E-7 and was scheduled to attend ANCOC class number 501-00 on
20 February 2002. Prior to his attending ANCOC, he failed an APFT, which resulted in his being placed under a FLAG action by his unit commander. As a result of his being under a Flag action, he was unable to attend the scheduled ANCOC. His SFC/E-7 promotion was revoked and his name was removed from the promotion and ANCOC lists.

2. The applicant’s reduction from SFC/E-7 was based on his failure to satisfy the NCOES requirement of his conditional promotion and was accomplished in compliance with applicable regulations. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout this process.

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3. The Board considered the applicant’s claim that he was unaware of the February 2000 school date and was scheduled to attend the ANCOC in October, and while this may be how he and his chain of command interpreted these events, it does not appear to supported by the evidence of record.

4. The evidence of record clearly shows that the applicant was scheduled for an ANCOC on 22 February 2000, and that he failed an APFT taken to satisfy a
pre-school checklist, and he was placed under a FLAG action. This prohibited his attendance at the scheduled ANCOC. As a result, revocation of his conditional promotion was required. Therefore, the Board finds insufficient evidence to show that his reduction was in error or unjust, and in the interest of fairness to all those soldiers who faced or may face similar circumstances, it concludes that the requested relief is not warranted in this case.

5. 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

__ FNE _ __JEA___ ___CC__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072707
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/03
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0300
2.
3.
4.
5.
6.