MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002074341

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. John T. Meixell		Member
Mr. Eric N. Andersen		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 of Sergeant First Class (SFC) and that he be rescheduled for attendance at Advanced Noncommissioned Officer Course (ANCOC).

APPLICANT STATES: That he should be reinstated to the rank of SFC due to an erroneous use of regulations and lack of care and regards of his career. He also states that it is unfair and not right to put the burden on the soldier to correct this issue. However, if proper procedures were followed in accordance with Army Regulation 140-158, he would be attending ANCOC in the rank of SFC.
Errors occurred in the process due to no fault of his own. His reduction should be withdrawn and his rank should be reinstated without a break of time in grade (TIG). In support of his application, he submits a copy of his reduction orders and DA Forms 3349s (Physical Profile).

The applicant submits an additional statement to his application. He states that he was administratively reduced for failing to attend ANCOC in a timely manner and for being a "No Show" for each time that he was scheduled.

He was scheduled to attend ANCOC during March/April 1999 timeframe which was canceled due to his temporary profile for a torn hamstring. His command was notified and proper documentation was provided and forwarded. He was scheduled to attend ANCOC the second time during the September/November 1999 timeframe which was canceled due to pain in both knees. Once again, his command was notified and proper documentation was forwarded.

He was scheduled to attend ANCOC for the third time in May 2000 and was never informed. His fourth and last date of scheduling for ANCOC was 1 December 2001. He was unable to attend due to his knee pain and was issued a temporary profile. He requested a second opinion and was found to have arthritic spurring (inflammation of a joint/a projected piece of bone) in both knees and was finally issued a permanent profile on 14 December 2001, which was approved on 3 January 2002, from running to walking. He contacted his career manager and informed him that he was following orders from his supervisor. Once again proper documentation was forwarded.

In conclusion, he requests that the information provided be reviewed and that his case be overturned. His reduction board was for soldiers who did not follow procedures outlined in the regulation. He also requested and was denied attendance at ANCOC on 14 July 2002, class Number 008 and was never officially notified of a reduction board in accordance with Army Regulation
140-158, paragraph 7-6c and 7-7a.




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

He is currently serving in the Army Guard/Reserve (AGR) Program with the 81^st Regional Support Command (RSC) in Birmingham, Alabama, as a field recruiter. He was promoted to staff sergeant (SSG/E-6) on 20 September 1992.

The applicant was conditionally promoted to SFC/E7 on 1 September 1998.

On 21 November 2001, a DA Form 3349 was prepared, which issued the applicant a temporary profile of 113111 due to leg pain. This profile was valid until 29 December 2001. He was allowed to walk, bicycle, and swim at his own pace and distance and walk or run in a pool at his own pace.

On 12 December 2001, the US Army Reserve (USAR) AGR Enlisted Reduction Panel convened with the responsibility to screen conditionally promoted enlisted AGR personnel. After a comprehensive review of the applicant's professional development education file, the panel determined that the applicant should be reduced in rank for failing to meet the conditions of his promotion. The applicant’s recourse for appeal was to this Board.

On 3 January 2002, a DA Form 3349 was prepared, which issued the applicant a permanent physical profile of 112111 due to knee pain. His APFT consisted of the walk, push-ups, and sit-ups. He was allowed to walk, bicycle, and swim at his own pace and distance and walk or run in a pool at his own pace and distance. It also indicated that his permanent change in profile did not require a change in his military occupational specialty (MOS) and duty assignment.

The applicant's records contain a copy of memorandum, dated 30 January 2002, from the Commander, US Army Recruiting Battalion, Nashville. The commander requested that the applicant not lose his rank due to noncompletion of ANCOC. The applicant was on temporary profile form 15 March to 15 May 1999 and again from 10 September to 15 November 1999. However, these profiles are unavailable for review by this Board. The commander also stated that the battalion was never notified of the applicant's 21 May 2000 school date. Therefore, it was no fault of the applicant for not attending.

On 16 March 2000, the applicant e-mailed his career manager requesting that he be allowed to attend ANCOC, class 008 from 13 to 26 July 2002. His request was forwarded for consideration and processing.

The applicant was reduced to the pay grade of E-6/SSG with an effective date of 22 March 2002, and a date of rank (DOR) of 20 September 1992.



Army Regulation 140-158 prescribes policies and procedures pertaining to the
classification, promotion, reduction, and grade restoration of enlisted soldiers
of the US Army Reserve (USAR). Chapter 7 governs grade reduction and restoration of USAR soldiers.

Paragraph 7-5 of the same regulation states that the DOR for restoration of an AGR soldier reduced in accordance with paragraph 7-12d will be the original DOR of the grade held before reduction.

Paragraph 7-6 pertains to convening authority and responsibilities. Subparagraph 7-6c states that the board would convene at least 30 working days after the soldier (s) being considered have been notified in writing of the scheduled hearing. However, it must be convened within 60 days after receipt of documentary evidence requiring board consideration.

Paragraph 7-7 pertains to reduction board procedures. It states that a soldiers who is to appear before the board will be given written notice at least 30 days before the hearing.

Paragraph 7-12d pertains to failure to meet conditional promotion NCO Education System (NCOES) requirements. It states that a soldier who accepts a promotion with the condition that he or she must enroll in, and successfully complete, a specified NCOES course, and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a "No Show," will be reduced to the grade and rank held prior to the conditional promotion.

Paragraph 8-19 of the same regulation pertains to conditional promotion to SGT through MSG. It states that under promotion procedures of this regulation, a soldier may be promoted on the condition that he or she enroll in and successfully complete the course required for that grade. If the grade requires the soldier to be a graduate of ANCOC, the soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of ANCOC within 24 months of the Phase I completion date. An extra 12 months will be allowed for completion of each phase of ANCOC for courses with more than
2 phases.

Paragraph 8-22 pertains to NCOES course failure. It states, in pertinent part, that when a soldier fails to complete a required NCOES course, the soldier's name will be removed from a promotion list, and if conditionally promoted, the soldier will be reduced in accordance with paragraph 7-12d. It also states that if the failure is a result of a delay cited in paragraph 8-21, no adverse action would be brought against the soldiers. The soldier should be reenrolled as soon as


possible after the reason of the delay has been satisfied. It also stated that a soldier would be eliminated from a course because he or she failed to report as order and was declared a "No Show." If determined that the failure was the soldier's fault and there were no extenuating circumstances beyond the soldier's control which prevented him or her from reporting, the soldier is considered to be a "No Show" and would be reduced per paragraph 7-12d.

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 applicant states that he was scheduled to attend ANCOC during the
timeframes of March/April 1999 and September/November; however, his class dates were canceled due to temporary profiles for a torn hamstring and pain in both knees. His command was notified and proper documentation was provided and forwarded. The applicant's profiles for these periods are not available for review by this Board.

2. The applicant was scheduled to attend ANCOC for the third time; however, he stated that he was never informed. His fourth and last date of scheduling was 1 December 2001. He was unable to attend due to his temporary profile for knee pain and was later issued a permanent profile. His career manager was informed of his status and proper documentation was forwarded. On 12 December 2001, the applicant's case appeared before the reduction panel for failing to meet the conditions of his promotion.

3. A request was submitted by the Nashville Recruiting Commander requesting that the applicant not lose his rank due to noncompletion of ANCOC. The commander stated that the applicant was on temporary profile twice and was
never notified of the 21 May 2000, school date due to no fault of his own.

4. The applicant requested that he attend ANCOC, class 008 from 13 to 26 July 2002, for the fourth time after the convening date of the reduction panel. His request was forwarded for consideration and processing; however, there is no evidence to show that his request was approved. He was reduced to SSG in accordance with regulation. Therefore, he is not entitled to reinstatement to the rank of SFC.

5. The applicant was promoted to SFC and, in accordance with promotion procedures, must enroll in and complete the course required for that grade. The soldier was required to be enrolled in ANCOC within 12 months of the date of promotion and be a graduate of ANCOC within 24 months of the Phase I completion date. However, the applicant failed to meet this requirement.
Therefore, this Board does not recommend attendance at ANCOC based on the evidence provided.
6. The Board notes that the applicant stated that he was never officially notified of the reduction board in accordance with regulation; however, paragraph 7-12d clearly stated that failure to meet conditional promotion NCOES requirements would result in reduction to the grade and rank held prior to the conditional promotion.

7. 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.

8. 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

__mm___ __jm___ ___ea__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074371
SUFFIX
RECON
DATE BOARDED	20021105
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1039
2.
3.
4.
5.
6.