PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 February 2003
         DOCKET NUMBER: AR2002073835


         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Lawrence Foster		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, reinstatement on the sergeant first class (pay grade E-7) promotion list and restoration of his rank to sergeant first class with a date of rank (DOR) of 1 September 2002.

3. The applicant states, in effect, that his unit failed to obtain the necessary signature required for the deferral of his attendance at the Advanced Noncommissioned Officer Course (ANCOC); that he was considered a "No Show" and his name was removed from the E-7 promotion list and he was reduced from pay grade E-7 to pay grade E-6 (staff sergeant) on 22 January 2002. He submits in support of his request a memorandum from the Office of the Chief of Army Reserve, Washington, DC, dated 23 September 1999; Orders Number 228-27 (Promotion), dated 15 August 2000, and Orders Number 022-07 (Reduction in Rank to E-6), dated 22 January 2002, both orders from the U.S. Total Army Personnel Command (TAPC), St. Louis, Missouri; a letter from Southeastern Lung Care, Conyers, Georgia, dated 11 April 2001; two DA Forms 4187 (Personnel Action); a Physical Profile, dated 2 April 2001; a memorandum from Headquarters, 38th Ordnance Group, 101 Lake Drive, Charleston, West Virginia, dated 17 April 2001; three memoranda from Headquarters, 321st Ordnance Battalion, 101 Lake Drive, Charleston West Virginia, dated19 April 2001, 27 September 2001, and 21 February 2002; a memorandum from Headquarters, 99th Regional Support Command, 99th Soldiers Lane, Coraopolis, Pennsylvania, dated 13 August 2002; and an E-mail from the United States Army Reserve Personnel Command (ARPERSCOM), dated 12 August 2002.

4. The applicant’s military records show that, on 17 May 1994, he was separated from the Texas Army National Guard (TXARNG) and assigned to the United States Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri after he had completed 1 year, 3 months and 17 days of ARNG service. He had also completed 11 months and 19 days of prior reserve component service and 10 years, 7 months and 23 days of prior active Federal service.

5. On 19 November 1995, the applicant enlisted in the USAR for 6 years in pay grade E-5. His expiration of term of service (ETS) date was 18 November 2001. The applicant was promoted to pay grade E-6, effective 31 December 1996. On 24 June 1999, he extended his period of enlistment by 6 months and 24 days and his new ETS date was established as 6 June 2002.

6. On 23 September 1999, the Office of the Army Chief of Army Reserve, Washington, DC, informed USAR units that, in an attempt to maximize training/school attendance, the first general officer (GO) in a soldier's chain of command was the only official authorized to cancel a valid reservation or grant a

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waiver within the 45-day window of the start of any course. This policy modified the policy in Army Regulation 140-158 which states that the approving official for a deferment/delay for a Noncommissioned Officer Education System (NCOES) course is the first colonel in a soldier's chain of command.

7. The applicant was considered and selected for a conditional promotion to pay grade E-7 with a date of rank of 1 September 2000. He was scheduled to attend ANCOC on 22 April 2001. His promotion was conditional on his attendance and completion of ANCOC.

8. On 12 April 2001, the applicant was assigned to Headquarters and Headquarters. Detachment, 321st Ordnance Battalion, Charleston, West Virginia, when he submitted a DA Form 4187 requesting deferment from attending ANCOC due to the illness of his sister. Enclosed with his request was a copy of an 11 April 2001 letter that was written by his sister’s physician. The physician requested that the applicant be excused from attending ANCOC; that his sister was critically ill; that she had been in the intensive care unit at Rockdale Hospital in Conyers, Georgia, since 27 March 2001, and that the applicant had been helping care for her and her affairs since that time. The physician also indicated that the applicant's sister would be hospitalized for at least two additional weeks.

9. On 12 April 2001, the applicant's commander also recommended approval of the deferral and signed the request. On 17 April 2001, a colonel in the applicant's chain of command recommended that the applicant's request be approved and that he be enrolled in the next available ANCOC.

10. On 19 April 2001, the Regional Support Commander recommended approval and requested that the applicant be enrolled in the next available resident ANCOC. The available evidence does not show what happened to the applicant's request for deferment after this point.

11. On 5 August 2001, the applicant submitted a DA Form 4187, request for enrollment in the ANCOC commencing on 12 February 2002 or 23 April 2002. The applicant's chain of command recommended approval.

12. It is not clear exactly when the applicant was informed that his request for deferment was not processed to completion. However, Order Number 022-07, dated 22 January 2002, shows that the applicant was reduced on that date from pay grade E-7 to pay grade E-6. He was also administratively removed from the E-7 promotions list after he was declared a "No Show" due to failure to attend ANCOC on 22 April 2001.

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13. On 13 August 2002, a major general -- the first GO in the applicant's chain of command -- stated in a memorandum provided to the ARPERSCOM that "I concur that [applicant's] deferment, if it were processed in April 2001, would have received my approval" and that "after a review of all of the available evidence, it is clear to me that in April 2001, [applicant] was so preoccupied with his sister's critical medical condition, it would have limited his ability to successfully complete ANCOC."

14. In the processing of this case, an advisory opinion was obtained from the Full Time Support Management Directorate, ARPERSCOM, which recommended that the Board disapprove the applicant's request for reinstatement of his promotion to pay grade E-7 based on the fact that he received a conditional promotion with the understanding that he was to successfully complete the NCOES course required for the grade for which he was promoted. He understood that if he failed to meet the graduation requirements, or if he were declared a "No Show," he was subject to administrative reduction under the provisions of Army Regulation 140-158, paragraph 7-12d, to the grade and rank that he held prior to this promotion. Further, ARPERSCOM opined that a conditionally promoted soldier will only be authorized a delay for enrollment in, or completion of a required NCOES course when the soldier has been approved for a delay in writing by a colonel or above in the soldier's chain of command based on a documented temporary hardship; pregnancy; unresolvable employment conflict; or for personal reasons.

15. On 19 August 2002, the above advisory opinion was referred to the applicant for comment or rebuttal and there is no evidence that he responded.

16. Army Regulation 140-158 (Army Reserve Enlisted Personnel Classification, Promotion, and Reduction) prescribes the policy governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers. It provides for the conditional promotion of soldiers whose promotion sequence numbers are reached and who have not completed or attended ANCOC. It further provides that this promotion is awarded with the condition the soldier must be enrolled in, and successfully complete the NCOES course required for the grade to which promoted. The soldier understands and agrees that if he or she is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a “No-Show”, the soldier is subject to reduction under AR 140-158, paragraph 7-12d, to the grade and rank held prior to this promotion. The soldier further understands that if reduced, service performed in the higher grade will not be considered in determining retirement grade, date of rank, or any other determinations dependent on the higher grade.”

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17. Army Regulation 140-158, paragraph 8-21 and 8-22, also provides that a conditionally promoted soldier will be authorized delayed enrollment in, or completion of a required NCOES course when the soldier has been approved for such delay in writing by a colonel or above in the chain of command based on a documented temporary hardship; pregnancy; unresolvable employment conflict; or for personal reasons. The soldier should re-enroll in the course as soon as the reason for delay has been satisfied and no adverse actions will be brought against the soldier.

CONCLUSIONS:

1. The evidence available to the Board indicates that the applicant had a temporary hardship and he took the appropriate action through his chain of command to initiate a request for a delay/deferment in attending ANCOC.

2. The applicant’s chain of command fully endorsed his request for a deferment in attending ANCOC; however, the available evidence suggests that a breakdown in the approval process occurred and the applicant's request for deferment failed to be processed to completion.

3. Even though it was the applicant's responsibility to track his request for deferment and to ensure that it was approved by a GO in his chain of command, the evidence suggests that he may have been so preoccupied with his sister's medical condition that he failed to follow through on the request to completion.

4. The Board believes that the applicant should not bear total responsibility for a breakdown in the process. Therefore, in the interest of justice and equity, the applicant's name should be reinstated on the E-7 promotion list and his rank should also be restored to sergeant first class with a date of rank (DOR) of 1 September 2000. Such action is contingent upon his immediate enrollment in, and successful completion of ANCOC. Failure to do so would result, once again, in his administrative reduction to pay grade E-6.

5. 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:

a. by showing that the individual concerned was granted a temporary deferment/delay from attending ANCOC on/about 17 April 2001;

b.       by reinstating the individual’s conditional promotion to pay grade
E-7 with an effective date and DOR of 1 September 2000;
c. by providing the individual any back pay and allowance due as a result of reinstating his promotion; and
        
d. by reinstating the individual on the ANCOC list and scheduling him for attendance at the next available ANCOC class.

BOARD VOTE :

__ jns ___ __ reb ___ __ lf ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           John N. Slone
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073835
SUFFIX
RECON
DATE BOARDED	20030225
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	AR140-158
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	129.0000
2.
3.
4.
5.
6.