PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 April 2003
         DOCKET NUMBER: AR2003083475


         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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 of his promotion to sergeant first class/E-7 (SFC/E-7) and to the Advanced Noncommissioned Officer Course (ANCOC).

3. The applicant states, in effect, that he was declared a no-show for attendance at a scheduled ANCOC class in February 2001, and as a result his promotion to SFC/E-7 was revoked, and he was administratively removed from both the SFC/E-7 promotion and ANCOC lists. He claims that all the required documents for a deferment from the ANCOC class were submitted and processed through his prior chain of command in sufficient time to be reported to Department of the Army (DA) in order to prevent him from being declared a no-show at the scheduled ANCOC class.

4. The applicant further states that in late October his brother was diagnosed with a rare form of cancer, which required him to go on emergency leave. After consulting with the doctors treating his brother, he decided that since no one else in his family was available to help, he needed to request a compassionate reassignment to the Military District of Washington area to support his brother who was beginning chemotherapy treatment at George Washington University, Washington D.C. Upon his return from emergency leave, he began collecting the documents to initiate a compassionate reassignment. During this period, on 5 January 2001, he was verbally notified by his unit schools noncommissioned officer (NCO) that he was being scheduled to attend the ANCOC; however, there was not yet any official paperwork.

5. The applicant states that on 17 January 2001, his unit schools NCO still could not provide him with any paperwork for his ANCOC class date and he was referred to the schools NCO at Division Artillery (DIVARTY), his higher headquarters. This NCO also confirmed there was not yet any paperwork on his school. However, a computer check was done that showed that the class date was 28 February 2001. The applicant indicates that between 17 and 31 January 2001, he contacted the DIVARTY schools NCO on three occasions in reference to his school paperwork, but was still unsuccessful in obtaining his ANCOC paperwork.

6. The applicant states that on 5 February 2001, he was informed that his brother’s medical condition had worsened. At that time he contacted the DIVARTY schools NCO to obtain guidance on submitting an ANCOC class deferment. He submitted a deferment request, his battalion commander recommended approval and it was forwarded to DIVARTY. He states that it is his understanding that this deferment request was never received by the DIVARTY commander, but was rather disapproved by the DIVARTY command sergeant major (CSM) on 9 February 2001.
7. The applicant states that on 14 February 2001, he went to see the DIVARTY schools NCO to get his orders for school, and at that time he was informed that he was supposed to have been in school on 11 February 2001. He reported this information to his chain of command and the DIVARTY schools NCO was relieved of his duties.

8. The applicant claims that during the month of March 2001, he had several meetings with members of his chain of command about getting reinstated in the ANCOC. At this time, he was promised that before any action was taken, calls would be made to stop his reduction in rank. However, on 3 April 2001, he was administratively reduced to the rank of staff sergeant/E-6.

9. The applicant further indicates that in May 2001, his permissive attachment to Fort Myer, VA was approved in order to allow him to assist in his brother’s care during his chemotherapy treatment. He states at the end of his permissive TDY period, the Army was willing to extend his permissive TDY because the compassionate reassignment that he requested while attached to Fort, Myer was disapproved. He states for financial reason he could not afford to remain attached to Fort Myer and he elected to return to Fort Hood, Texas in late October 2001.

10. The applicant contends that upon his return to Fort Hood, he requested an appointment with his new battalion commander and CSM, which resulted in his meeting with the Division Support (DISCOM) CSM, who instructed him to submit a reinstatement packet. On 4 February 2002, he was informed that his reinstatement packet was disapproved. On 22 April 2002, his brother died and upon his return from emergency leave, the DISCOM CSM advised him to apply to this Board for reinstatement of his rank and to the promotion and ANCOC lists.

11. The applicant comments that he is aware of his responsibilities as an NCO and takes full responsibility for missing his ANCOC class date. However, the personal issues concerning his brother’s fight for his life and him being the primary care taker of his brother had a major impact when he made these decisions. He states his wife and kids have suffered through an agonizing time in their lives also. He states that approval of this reinstatement request will allow him to take care of soldiers and improve the living conditions of his family.

12. The applicant’s military records show that on the date of his application to this Board, he was still serving on active duty as a staff sergeant/E-6 (SSG\E-6) at Fort Hood, Texas.

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13. Orders Number 287-21, dated 14 October 1999, issued by the Total Army Personnel Command (PERSCOM), Alexandria, Virginia, authorized the applicant’s promotion to SFC/E-7. 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.

14. The applicant was scheduled to attend ANCOC class number 502 PH1 with a reporting date of 11 February 2001. On 8 March 2001, the PERSCOM Chief, Enlisted Promotions, notified the applicant by memorandum that based on his failure to attend a scheduled ANCOC class he was being administratively removed from the SFC/E-7 promotion list. Orders Number 66-5, dated 7 March 2001, published by PERSCOM, revoked the applicant’s promotion to SFC/E-7.

15. 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 4 February 2002, the Chief, Training Analysis, Management Branch, PERSCOM, advised the applicant’s unit commander that his 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.

16. The applicant provides letters of support from the CSMs of the 1^st Cavalry Division and Headquarters Division Support Command. Both of these members of the applicant’s NCO support chain recommend approval of the applicant’s request for reinstatement of his promotion and to the ANCOC. The CSMs confirm that the applicant was not at fault of his no-show status at his scheduled ANCOC class. They confirm that he was on emergency leave preparing a request for a compassionate reassignment due to the severe illness of his brother at the time he was scheduled to attend the class. They further confirm that a class deferment request was prepared at the applicant’s unit; however, it was not processed through proper channels. The result was that the applicant was considered a no show at his scheduled ANCOC class, his promotion to SFC/E-7 was revoked, and he was removed from the CY 99 SFC promotion standing list. The CSMs both recommend that the applicant’s rank be restored, he be reinstated on the promotion list, and that he be rescheduled for ANCOC attendance. Finally, they state that these actions would be in the best interest of the applicant and the Army.

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17. The applicant also provided a letter from the former CSM for 1/21 Field Artillery Battalion, who was his battalion CSM during the period his ANCOC deferment was processed. The CSM states that he is intricately familiar with the applicant’s request for an ANCOC class deferment. He comments that the applicant was harshly punished for failing to attend ANCOC, and that the facts in this case confirm that the unit chain of command failed to monitor the applicant’s preparedness to attend school. Furthermore, miscommunications between the battalion’s S-3 section in conjunction with the DIVARTY S-3 section further exacerbated the situation resulting in the applicant being declared a no show at his scheduled ANCOC class. The CSM confirms that prior to his school date, the applicant endured an extreme family hardship due to the failing health of his brother and he was understandably emotionally overwhelmed. In addition, the applicant’s emergency leave and the start date of his ANCOC class date were in conflict with his return to duty. However, the applicant did submit a deferment request which was not processed in a timely manner. Finally, he strongly recommended favorable consideration of the applicant’s request due to his superior performance in both the Garrison and Field environments during his tenure as his senior personnel sergeant.

18. The letter of support provided by the CSM, Headquarters, 215^th Forward Support Battalion, 1^st Division, the applicant’s current battalion CSM, states that he is aware of all the circumstances that resulted in the applicant being removed from the promotion list for not meeting the conditions of his promotion. He states the applicant is by no means free of blame, but his command at the time must assume most of the blame because it failed to provide him complete up to date information regarding his ANCOC attendance dates. The applicant’s situation regarding his brother should also be considered relevant in the Board’s decision. He comments that the applicant took care of family in a real time of crisis which is what all soldiers are told to do and he strongly recommends that the applicant’s request for reinstatement be approved.

19. 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.

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20. The Army’s ANCOC general attendance policy outlined by the PERSCOM NCOES branch states, in pertinent part, there 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.

CONCLUSIONS:

1. The Board notes the applicant’s contention that the revocation of his promotion, and his removal from the SFC/E-7 promotion and ANCOC selection lists were unjust; and his claim that he had submitted a request for an ANCOC class deferment that was not properly processed by his chain of command in a timely manner. After carefully reviewing the facts and circumstances of this case and the strong support of the applicant’s CSM support chain, the Board finds relief is warranted in this case.

2. The Army’s ANCOC attendance policy allows for class deferments for valid compassionate reasons. The evidence of record confirms that the applicant endured an extreme family hardship due to the failing health of his brother, and was on emergency leave at the time he was scheduled to attend the ANCOC. Further, although he was experiencing these family hardships, he still took the proper action by submitting a request for a class deferment that was approved by his battalion level of command, but his chain of command failed to properly process this request in a timely manner. As a result, he was categorized as a no show from his scheduled ANCOC class through no fault of his own.

3. In the opinion of the Board, the personal hardships being experienced by the applicant during the period he was scheduled to attend the ANCOC clearly qualify under ANCOC compassionate deferment provisions of the DA policy. Further, the record clearly shows that the applicant took the proper action to account for this situation by submitting a deferment request, and it was the failure of the chain of command to timely process this request that resulted in his being declared a no show from his scheduled ANCOC class.

4. In view of the facts of this case, the Board finds the applicant is not at fault for being placed in the status that resulted in the revocation of his promotion and his removal from the promotion and ANCOC lists. Therefore, the Board concludes that the applicant should have been granted a deferment from attendance at his scheduled ANCOC class and he was inappropriately categorized as a no-show at this class. Further, in the interest of justice and equity, it finds that any resultant actions taken, to include the revocation of the applicant’s SFC/E-7 promotion and his removal from the promotion and ANCOC selection lists should be corrected at this time.

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 by showing that the individual concerned was granted a compassionate deferment from attending his 11 February 2001 ANCOC class; by reinstating his promotion to SFC/E-7, effective 1 November 1999; by providing him any back pay and allowances due as a result of the reinstatement of this promotion; by reinstating him on the ANCOC list; and by scheduling him for attendance at an ANCOC class as soon as possible.

BOARD VOTE:

___teo___ ___tbr___ ___ao___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Arthur A. Omartian____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083475
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/04/01
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 314	131.0400
2. 315	131.0500
3.
4.
5.
6.