PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 April 2003
         DOCKET NUMBER: AR2002078424


         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Terry L. Placek		Member
Mr. Robert Duecaster		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, 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).

3. The applicant states that he should have never been coded as a "No Show" for ANCOC. He was under medical profile and was not released by his military physician as being cleared for his over 40 cardiovascular screening program (CVSP) due to being a high risk for heart attack. In support of his application, he submits copies of his: Standard Form 88 (Report of Medical Examination); SF 93 (Report of Medical History); several profiles; and doctor's statement.

4. The applicant's military records show that he is currently serving in the Army Guard/Reserve (AGR) Program with the Oklahoma Recruiting Battalion, as a field recruiter.

5. He was promoted to staff sergeant (SSG/E-6) effective 3 February 1997, with a date of rank (DOR) of 3 February 1997.

6. The applicant was conditionally promoted to SFC/E7 effective 1 January 2000, with a DOR of 1 January 2000.

7. The applicant was scheduled to attend ANCOC in June 2000. He was issued a temporary profile of 112111 due to bilateral leg strain/possible arthritis on 7 June 2000. His assignment limitations were no running, jumping, or marching, and no sit-ups. This profile was valid until 7 July 2000. His Army Physical Fitness Test (APFT) limitations consisted of push-ups and sit-ups. At that time, his first sergeant informed the battalion training NCO to cancel his ANCOC.

8. The applicant provided a copy of his over 40 physical dated 14 July 2000, which shows that he was issued a physical profile of 111111 and was qualified for retention in his current duty assignment. However, he was not cleared for
CVSP due to his high cholesterol and blood pressure.

9. He was seen at Fort Sam Houston, Texas for further test and evaluation and remained on profile. He was later seen by medical personnel at Fort Sill, Oklahoma for follow-up to monitor his high blood pressure and was issued several profiles.








10. He received an email in June 2001 notifying him that he was rescheduled for ANCOC in August 2001. In August 2001, he arrived at Fort Sill to be evaluated for CVSP and to receive the proper documentation for clearance to attend ANCOC. He was informed at that time that he was not cleared. He informed his station commander, who later informed the battalion training NCO, who spoke with authorities at Fort Sill. They were informed that documentation was needed in order to cancel the applicant's seat for ANCOC. He was provided with documentation and later notified that he was unable to attend ANCOC until he was cleared for his over 40 CVSP.

11. He was issued a temporary profile for 90 days due to back pain on 15 January 2002.

12. On 15 January 2002, the 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 panel also stated that the applicant’s recourse for appeal was to this Board.

13. On 12 February 2002, he was seen by the Chief, Physical Examinations at Fort Sill, Oklahoma who indicated that he had not been cleared for ANCOC in 2000. A consult was written for the applicant to be seen by a military physician for clearance with an expected date of appointment of 28 February 2002.

14. On 19 February 2002, orders were published reducing the applicant to the pay grade of E-6/SSG with an effective date of 19 February 2002, and a date of rank (DOR) of 3 February 1997.

15. On 19 February 2002, the applicant appealed his reinstatement to the USAR AGR Enlisted Reduction Panel. He stated in detail the events that occurred prior to his reduction. He was scheduled to attend ANCOC twice and was declared a "No Show." He felt that he should have not been classified as "No Show" since his classes were canceled by the training NCO due to medical reasons. He now requests that the panel reconsider their decision due to an administrative error in coding him as a "No Show." He is now cleared on his CVSP and is able to attend ANCOC.

16. On 28 February 2002, he was evaluated by the family practice clinic at Fort Sill, Oklahoma and was cleared for ANCOC.





17. The applicant provides a memorandum of support for his reenrollment in ANCOC from his command retention NCO, dated 18 April 2002. He stated that based on the information received the United States Army Recruiting Command (USAREC) was negligent in the processing of the applicant's case from start to finish. The applicant is a superior soldier and his current job performance has been excellent since his assignment to the 90^th RSC. He also stated that had the applicant been under the 90^th RSC's command he would be fully qualified by now. The applicant should not suffer the embarrassment of being reduced. Request that he be immediately reinstated to the rank of SFC.

18. On 29 April 2002, the applicant was issued a temporary profile of 112111 due to chronic low back pain. His APFT consisted of push-ups, sit-ups, and either the walk, swim, bicycle, or alternate aerobic event. He was permitted unlimited walking, bicycling, swimming, and run at own pace and distance. On 6 May 2002, his temporary profile was changed to a permanent profile.

19. On 2 August 2002, the Chief, Command Retention and Transition Officer, prepared a memorandum of support. He stated that the applicant had exhausted all administrative remedies and his only recourse was this Board. The applicant's packet is submitted for review and reinstatement to the rank of SFC. He further stated that the command was directly responsible for the applicant's failing to meet the conditions of his promotion.

20. The applicant was administered an APFT on 22 March 2003 and passed all three events and met the body fat standards.

21. The applicant provided a copy of an abstract of his Pre-Execution Checklist. It states that if you are age 40, you will not be permitted to take the APFT until cleared by the CVSP. Proof of clearance must be shown before enrollment to NCOES and must be hand carried to the NCO Academy.

22. The US Total Army Personnel Command (PERSCOM), NCOES Branch published and distributed a new Profile Policy on 5 October 2000. This policy, which applies to soldiers of all components attending NCOES, states that soldiers may not attend NCOES courses with a temporary profile. "If you are scheduled for an NCOES course and you are on a temporary profile or
the recovery period of the profile overlaps with your course report date, you should immediately notify your unit schools NCO and your installation training office. They will in turn notify the NCOES section to cancel your reservation." This letter also stated that soldiers may attend NCOES courses with a permanent designator 2 (P2) physical profile with a copy of DA Form 3349. Eligibility to attend NCOES with this type of profile was based on the soldier's ability to train


within the limits of the profile provided they could meet the minimum course graduation requirements. This letter further stated that soldiers may attend NCOES courses with a permanent designator 3 (P3) or permanent designator 4 (P4) physical profile with a copy of DA Form 3349 that has been reviewed by a Medical Screening Board. Soldiers that have not been medically screened and classified with appropriate limitations would not attend courses. Soldiers who have been before a medical screening board, awarded medical limitations, and allowed to retain their military occupational specialty (MOS) or are reclassified would be eligible to attend NCOES and would be required to meet course prerequisites up to the limits of their profile.

23. 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 7-12d pertains to failure to meet conditional promotion 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.

24. 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.

25. 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.

26. 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 were 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 ordered 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.

CONCLUSIONS:

1. The applicant was issued a temporary profile due to bilateral leg strain in June 2000. He was scheduled for ANCOC and informed his first sergeant who informed the battalion training NCO to cancel his seat. He was later administered an over 40 physical and was not cleared for CVSP due to high cholesterol and blood pressure. He remained on profile and was seen by medical authorities for further test and evaluation.

2. The applicant was later rescheduled for ANCOC and was informed by medical authorities that he was not cleared to attend ANCOC. He was issued a temporary profile for 90 days due to back pain on 15 January 2002. On that same day, his case was reviewed by the USAR AGR Reduction Panel, which determined that he should be reduced to SSG.

3. He was later seen and evaluated by medical authorities and was cleared for ANCOC on 28 February 2002.

4. The applicant was issued a temporary profile on 29 April 2002, due to chronic back pain. This profile allowed him to walk, swim, bicycle, or alternate aerobic event for the APFT and was able to do sit-ups and push-ups. He was issued a permanent profile on 6 May 2002 and was administered an APFT where he passed all events and met the body fat standards.

5. The applicant had valid temporary physical profiles and should have been deferred from ANCOC until resolution of his medical condition. It appears that he was not deferred and in fact, declared a "No Show."

6. The Board notes that PERSCOM's Profile Policy states that soldiers may attend ANCOC with a permanent designator of 2 (P2) with a copy of their DA Form 3349. The applicant is now in receipt of a valid permanent profile and is eligible to attend ANCOC.

7. Therefore, based on the foregoing, the applicant should be rescheduled for attendance at the next available ANCOC in his MOS and grade. He should also be reinstated to the rank of SFC/E7 with a DOR and effective date of 1 January 2000, the date of his initial promotion, and entitled to all back pay and allowances.



8. 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 for the individual concerned be corrected:

a. by rescheduling him for attendance at the next available ANCOC for his MOS and grade;

b. by reinstating him to the rank of SFC/E7 with a date of rank and effective date of 1 January 2000, the date of his initial promotion; and

c. by showing that he is entitled to all back pay and allowances.


BOARD VOTE:

__ro___ __tp___ __rd____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr._
                  CHAIRPERSON

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INDEX

CASE ID	AR2002078424
SUFFIX
RECON
DATE BOARDED	20030424
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.