PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 January 2003
         DOCKET NUMBER: AR2002078668


         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Tracey L. Pinson		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.

---

2. The applicant requests, in effect, that he be reinstated to the rank and pay grade of sergeant first class/E-7 (SFC/E-7); that he be scheduled to attend the Advanced Noncommissioned Officer Course (ANCOC) at the earliest opportunity; and that all documents related to the revocation of his promotion, and his removal from the promotion and ANCOC lists be removed from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that inappropriate action on the part of his battalion command sergeant major (CSM) and the failure of an appropriate chain of command response resulted in the revocation of his conditional promotion to sergeant first class/E-7 (SFC/E-7), and his removal from the promotion and ANCOC lists. He claims that he was unable to attend the ANCOC as a result of being placed under a suspension of favorable personnel actions (FLAG) based on a determination made by the battalion CSM that he exceeded body fat standards. He claims that this overweight determination was based on faulty measurements taken by the battalion CSM. He states that he went through several weight screenings between 1 January and 8 June 2001, and he was found to be in compliance with body fat standards in all but three of the measurements. All three of these measurements were taken or supervised by the battalion CSM.

4. The applicant also contends that in his case the chain of command also failed to follow administrative regulatory requirements upon placing him in the weight control program; in addition to failing to follow proper policy and procedure for the removal of a Suspension of Favorable Personnel Actions (FLAG). His full arguments and his extensive explanation of the facts and circumstances surrounding his case are provided in the enclosed 33 page declaration he provided to the Board.

5. The applicant’s counsel states, in effect, that the applicant should be reinstated because proper regulatory procedures were not followed in his removal from the promotion and ANCOC lists; his supposed entry into the weight control program; and in lifting the FLAG action that was imposed upon him. Counsel further states that the chain of command’s failure to follow these well established procedures unjustly prevented the applicant from attending the ANCOC, which he otherwise would have been qualified for. He states that he advised the applicant to pursue an administrative remedy to his case through the chain of command. When this failed, he advised the applicant to submit his issues to the local Inspector General (IG), but this also failed to provide relief. Finally, he recommended that the applicant submit a request for reinstatement to the Noncommissioned Officer Education System (NCOES) Reinstatement Panel, Total Army Personnel Command (PERSCOM), however, this also failed.

---

6. Finally, given the applicant’s attempts at an administrative remedy have been exhausted, counsel advised the applicant to apply to this Board for relief. In addition, counsel points out that the Board has previously reinstated soldiers based on facts similar to these, and he has provided a copy of an applicable case for reference and use by the Board.

7. 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 (SSG/E-6), and that he is assigned to Korea.

8. In September 1999, the applicant was notified that he had been selected for promotion to SFC/E-7. In October 1999, he was reassigned to Fort Lewis, Washington, and in January 2000, he deployed to the Sinai, Egypt, for a six month tour of duty with the Multinational Force and Observers (MFO). While serving with the MFO, he discovered that he had been scheduled to attend an ANCOC class in March 2000, however, he was unable to attend due to his deployment. In July 2000, the applicant redeployed to Fort Lewis, and in November 2000, he was scheduled to attend an ANCOC class beginning on
4 January 2001.

9. A Body Fat Content Worksheet-Male (DA 5500-R) on file, dated 2 January 2001, shows that the applicant’s body fat percentage was 24.57 percent, which was .57 percent over his allowed body fat content of 24 percent. This measurement was supervised by the applicant’s battalion CSM.

10. A FLAG action (DA Form 268) was initiated on the applicant on 4 January 2001. However, there is no evidence to show that any of the actions prescribed by the regulatory procedures for a soldier’s entry into the weight control program, such as referral for a medical evaluation and to a nutritionist, were followed in this case.

11. A DA 5500-R, dated 23 February 2001, shows that the applicant was measured by the unit weight control Noncommissioned Officer (NCO) on that date and his body fat content was 22.63, which was 1.37 percent below his maximum allowable body fat content of 24 percent. However, there is no indication that this action was referred to the unit commander for approval and to remove the FLAG action, which would have been appropriate action for the unit commander to take once the applicant met the regulatory height/weight standards.

12. Order Number 127-6, dated 7 May 2001, published by PERSCOM, revoked the applicant’s promotion to SFC/E-7, and on 24 May 2001, the Chief, Enlisted Promotions Branch, PERSCOM, notified the applicant’s command that his name was administratively removed from the promotion list due to his failure to attend his scheduled ANCOC class.

13. On 14 June 2001, the applicant applied to the NCOES Reinstatement Panel and requested reinstatement into ANCOC. He provided an extensive packet outlining the same issues and contentions he has provided to this Board.

14. On 31 July 2001, 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. The applicant was advised that any further requests or appeals in regard to this matter should be referred to this Board for resolution.

15. The applicant provided several statements of support from several officers and senior enlisted members of his command, who all confirm his version of the events that took place. Two of the most significant of these statements were from his battalion Physician’s Assistant (PA), a captain, and from his unit First Sergeant (1SG).

16. In his statement, which is enclosed, the PA states, in effect, that proper regulatory procedures were not followed in the applicant’s case when it was determined that he was not in compliance with Army weight control standards. It further indicates that the FLAG on the applicant was lifted on 11 May 2001, signifying removal from the weight control program. He also outlined five separate weight measurements taken on the applicant between 28 November 2000 and 11 May 2001. Four of these were conducted by the battalion CSM, who determined the applicant exceeded the body fat content standard in three out of the four he took. A fifth measurement was taken by the unit weight control NCO on 28 February 2001, which had resulted in a determination that the applicant met the body fat standard.

17. The PA further stated that proper procedures for placing a soldier in the weight control program were never followed. He states that it is clear the applicant was never medically screened to determine if there were underlying medical conditions contributing to his weight problems; he was never referred to a qualified nutritionist for counseling prior to entry into the program; and the required monthly weigh-ins were not conducted. Further, the PA states that proper FLAG removal procedures were not followed after the applicant was found to be in compliance with the weight control standard on 28 February 2001, and this oversight was not discovered until April 2001, during which time the battalion CSM again determined the applicant was overweight.

---

18. The PA commented that on 4 June 2001, over 3 weeks after the FLAG action was removed, the CSM again conducted a screening that determined that the applicant did not meet the weight control standard. Based on these facts, the PA concludes that it is apparent, by the clear lack of documentation and adherence to regulatory procedures for the weight control program and for FLAG actions, that the applicant was the subject of an inconsistent program. These inconsistencies were characterized by the gross mismanagement and blatant disregard for regulatory procedures on the part of his chain of command.

19. On 27 September 2001, the applicant’s unit 1SG prepared a statement for the Board. It indicated that he had conducted a body fat content measurement on the applicant on 11 May 2001, and he determined that the applicant’s body fat content was 2.29 under his maximum allowable body fat content, and as a result the applicant was in compliance with the body fat standard. Subsequent to taking this measurement, the 1SG was informed that the battalion CSM had measured the applicant earlier in the day, and it had been determined that the applicant exceeded his maximum allowable body fat content by 0.08 percent.

20. The 1SG further stated that he has conducted numerous body fat tapings and is aware that some discrepancies exist. However, the notable difference in the body fat content he found and the one found by the battalion CSM on the same day was too extreme a difference to be explained away. The first sergeant concludes by stating that the great disparity in these measurements raises compelling and grave concerns over the accuracy and legitimacy of the taping process followed in January and April 2001 when it was originally determined that the applicant exceeded the body fat standard.

21. Army Regulation 600-8-2 provides the policies on initiating, transferring, and removing a Flag. Paragraph 1-13 provides specific circumstances that require a flagging action, and it includes, in pertinent part, entry into the weight control program. Paragraph 1-14 contains a list of actions that are prohibited by a Flag, which includes attendance at civil or military schooling.

22. Army Regulation 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program. Paragraph 21 provides the procedures to be followed once it has been determined a soldier is overweight. First a weight control counseling will be conducted by a health care professional; the soldier will be entered into the weight control program; a FLAG will be initiated; a medical evaluation will be conducted to determine if an underlying medical condition is the reason the soldier is overweight; and the unit is responsible to conduct monthly weigh-ins.

---

23. The Army’s ANCOC general attendance policy states, in pertinent part, that there is 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. It further states that soldiers who fail to satisfy the NCOES requirement for any reason other those that qualify for a deferment are removed from the centralized promotion list. This policy also indicates that soldiers 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.

CONCLUSIONS:

1. The evidence of record confirms that the applicant was denied attendance at the ANCOC based on his being under a FLAG action, as a result of his being in an overweight status on 4 January 2001, the scheduled date of his ANCOC class. Further, based on this failure to complete the course, his SFC/E-7 promotion was revoked and his name was removed from the DA Promotion and ANCOC lists.

2. However, notwithstanding the denial by the NCOES Reinstatement Panel, the Board finds that the applicant has provided clear and compelling evidence to show that there were significant irregularities in the weight screening process that was used to determine that he exceeded his maximum allowable body fat content. He also showed that the established regulatory policy and procedure were not followed when he was placed in the weight control program or in the FLAGGING process. Finally, he provided sufficient evidence to show that the chain of command failed to adequately address these issues at the time they took place.

3. The evidence of record also shows that the applicant was never provided weight control counseling by a qualified health care official once he was determined to be overweight. He never underwent a medical evaluation to determine if there was an underlying medical condition causing his weight problem; and required monthly weight screenings were not conducted by the unit once he was placed in the weight control program. Also, on 28 February 2001, when the unit weight control NCO determined he met the weight standard, the unit commander failed to remove the FLAG action as is required by regulation.

4. The evidence also verifies that all the overweight determinations made in the applicant’s case were made by the battalion CSM. The Board finds this troubling, considering all the other weight screenings done during the same period, by other responsible individuals, which found that the applicant met the standard. In the opinion of the Board, the disparity in these results raises serious doubt as to the validity of the initial and subsequent overweight determinations.

5. The Board also finds there was a significant failure on the part of the chain of command to follow established policy when the applicant was entered into the into the weight control program. In addition, there was a failure to follow proper procedures for removing his FLAG once it had been determined that he met the weight standard on 28 February 2001. Further, it finds no evidence suggesting that members of the chain of command addressed any of these failures or any of the legitimate issues raised by the applicant at the time. This failure casts significant doubt on the propriety of the initial overweight determination; the imposition of the FLAG action; the revocation of his promotion; and the removal of his name from the Promotion and ANCOC lists.

6. In view of the facts of this case, the Board finds that there are sufficient inconsistencies in the applicant’s case to warrant granting the requested relief. As a result, the Board concludes that it would be appropriate to reinstate the applicant’s promotion to SFC/E-7, with his original DOR; to provide him any back pay and allowances due as a result; to reinstate his name on the ANCOC list, and to schedule him to attend the next available ANCOC class.

7. 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 by reinstating the promotion to SFC/E-7 of the individual concerned, effective
1 May 2000, providing him any back pay and allowances due as a result of the reinstatement of this promotion; reinstating him on the ANCOC list; and scheduling him for attendance at the next available ANCOC class.

BOARD VOTE:

__KAK__ __MHM _ __TLP __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ _Karol A. Kennedy_ __
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002078688
SUFFIX
RECON
DATE BOARDED	2003/01/28
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.