MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2003085797

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		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: Reinstatement to the pay grade of E-7 and attendance at the next Advance Noncommissioned Officer Course (ANCOC) class.

APPLICANT STATES: In effect, that he was unjustly dismissed from the ANCOC for failing the Army Physical Fitness Test (APFT), when in fact, he passed the test. He goes on to state that the scorer was calling out his sit-up repetitions and when he (the applicant) had done his minimum requirement of 45, the scorer said 45, then changed it to 44, one repetition less than the minimum. He continues by stating that four other noncommissioned officers heard him change the count at the time and have rendered statements to that effect. As a result of this unjust failure, he was removed from the sergeant first class promotion list. He also states that his records will show that prior to this incident, no deficiencies can be found in the leadership skills he possesses. In support of his application he submits statements from four noncommissioned officers (NCOs) and a memorandum of endorsement from his brigade commander.

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

He enlisted with a moral waiver on 8 April 1992, for a period of 3 years and training as a field artillery meteorological crewmember. His moral waiver involved three civil violations, two of which were alcohol related. He successfully completed his training and has remained on active duty through a series of continuous reenlistments.

On 8 April 1994, he received a general officer memorandum of reprimand for driving under the influence of alcohol, which was filed on the performance fiche of his Official Military Personnel File.

He was promoted to the pay grade of E-6 on 1 September 1997 and to the pay grade of E-7 on 1 May 2002. At the time he was promoted to the pay grade of E-7, his promotion orders specified that personnel who did not have ANCOC credit were promoted conditionally and that failure to meet the Noncommissioned Officer Education System (NCOES) requirements would have their promotions revoked.

On 29 November 2002, the applicant was notified that he was being dismissed from the ANCOC for failing the initial and subsequent retest of the APFT. The applicant indicated that he intended to appeal the action; however, there is no evidence in the available records to show that he did so.

On 2 December 2002, a Service School Academic Evaluation Report (DA Form 1059) was completed which indicates that the applicant failed to achieve course standards due to failure of the initial and retest of the APFT.

On 13 December 2002, the applicant submitted a request to the NCOES Reinstatement Panel, to be reinstated to the ANCOC. He cited as the basis for his appeal that the grader had miscounted his repetitions of the sit-up event by one repetition and that four other NCO students heard him do so. This caused him to fail the test. He also stated that he had only intended to do the minimum repetitions of the sit-up and push-up events because his trouble in the previous test had been the run event. He had implemented a training program to improve his run time, which proved to be effective; however, he then failed the sit-up event because his grader miscounted. He submitted statements from four NCO students who all say that they heard the grader say "45", then changed it to "44." The applicant also submitted a memorandum from his brigade commander in which the commander strongly endorsed the applicant's reinstatement. He also stated that the applicant had accepted responsibility for his disenrollment and understood that his failure of the APFT was an example of just doing enough to get by. He further stated that the applicant is a superb NCO and that he deserves another chance to attend the ANCOC.

On 15 January 2003, the Total Army Personnel Command (PERSCOM) Promotions Branch notified the applicant that he had been removed from the promotion selection list due to his release from ANCOC.

On 10 February 2003, the applicant's request for reinstatement to the ANCOC was disapproved by the Department of the Army NCOES Reinstatement Panel.

Military Personnel (MILPER) message number 94-24 dated 22 October 1993, announced conditional promotions to the rank of sergeant first class (SFC) and sergeants major (SGM) for individuals whose sequence numbers had been reached and who had not attended the ANCOC or sergeants major academy (USASMA). It provided, in effect, that conditional promotions are contingent upon the successful completion of the required level of NCOES. Soldiers who prior to 1 October 1993, fail to complete ANCOC or USASMA due to academic or disciplinary reasons, or who were denied enrollment will not be conditionally promoted. Those soldiers who on or after 1 October 1993, accept a conditional promotion, and are subsequently declared an academic failure or fail to meet course requirements, will have their promotion revoked by the PERSCOM and will be removed from the promotion list. Personnel who apply for reinstatement, who are reinstated, will receive a DOR and effective date as of the date they graduate the ANCOC.

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 was properly deemed an academic failure after failing two APFTs on 20 November and 29 November 2002. He properly was released from the course for failure to achieve course standards and his promotion was revoked in accordance with the provisions of his accepting the promotion conditional on his completion of the ANCOC.

2. While the applicant has not provided the Board with information relating to his appeal of his dismissal from the ANCOC at the time, his contention that the grader improperly counted his repetitions at the time was an issue that was best resolved on-site, at the time. In any event, he was not able to convince officials at the ANCOC or the Reinstatement Panel that he was improperly scored.

3. While the applicant has provided statements from four other students who were present at the time and who contend that the applicant did one more repetition than he was given credit for, the Board is not convinced that such was the case, given that this was his second attempt to pass the APFT.

4. 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.

5. 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

___mvt__ ___fe ___ ___jm ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085797
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/08/19
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 206	111.0100/ACAD RPT
2. 192	110.0300/REINSTATE TO ANCOC
3. 312	131.0200/REM FROM SEL LIST
4.
5.
6.