MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 November 2003
                  DOCKET NUMBER: AR2003086730

         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. Gail J. Wire		Member
Mr. Antonio Uribe		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: Promotion to the pay grade of E-8.

APPLICANT STATES: In effect, that had it not been for the unjust actions and unsubstantiated accusations of his former company commander which led to a series of events that has ultimately prevented him from attending the Advanced Noncommissioned Officer Course (ANCOC), he would have been promoted to the pay grade of E-8. However, although he eventually overcame the obstacles, he was unable to attend the ANCOC and his conditional promotion to the pay grade of E-7 was revoked in 2001, after over 6 years of serving successfully in that pay grade. Fortunately, in 2002, his rank was restored to him without the requirement to attend ANCOC. He goes on to state that he applied to the Board to have his records corrected and while he still has not received his Good Conduct Medal (GCM) orders, the Board recognizes the injustices he had to endure. He further states that he was denied the opportunity to compete for promotion because he had not attended the ANCOC and contends that because the requirement for the promotion to the pay grade of E-8 is the same as that of E-7, he should have been considered and selected for a promotion that he has earned, despite the fact that he was medically retired by reason of physical disability. He continues by stating that this is his final attempt to correct this injustice within military channels and is prepared to elevate his grievance to the civilian courts.

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

He enlisted on 28 July 1981 for a period of 3 years and training as a medical specialist under the airborne training enlistment option. He successfully completed his training, was assigned to Fort Bragg, North Carolina, and was advanced to the pay grade of E-4.

On 28 July 1984, he reenlisted for a period of 3 years and stabilization at Fort Bragg. At the time of his reenlistment he indicated that he had been arrested for driving under the influence (DUI) in June 1983 in Fayetteville, North Carolina, and had paid a fine. On 25 September 1987, while serving in the pay grade of E-5, he reenlisted for a period of 3 years. He subsequently reclassified to military occupational specialty (MOS) 11B30 (light weapons infantryman) and was promoted to the pay grade of E-6 on 1 January 1989.

On 27 February 1990, while stationed at Fort Ord, California, he reenlisted for a period of 6 years, under the Ranger training option, assignment to Fort Stewart, Georgia, and a selective reenlistment bonus.

In February 1992, he was reassigned to Fort Bragg, North Carolina, where he was promoted to the pay grade of E-7 on 1 January 1994. The orders that promoted him to the pay grade of E-7 specified that his promotion to the pay grade of E-7 was conditional on his completing the ANCOC and that failure to do so would result in his orders being revoked.

On 8 July 1995, the applicant was involved in a motorcycle accident in which he was injured and was charged with exceeding a safe speed. He was transported to Womack Army Hospital at Fort Bragg for treatment. He was diagnosed with a right clavicle fracture and right posterior rib fractures. A blood sample was taken from the applicant for medical screening at the time of his admission and was subsequently reported as being a .256 g/100ml blood-alcohol level.

On 3 November 1995, a suspension of favorable personnel actions (Flag) was initiated against the applicant by his company commander. The reason cited by the commander was a pending investigation.

On 19 January 1996, a general officer letter of reprimand (GOLOR) was issued to the applicant for drunk driving on 8 July 1995 as determined by the blood test administered at the time of his hospital admission.

On 7 February 1996, the applicant extended his enlistment for a period of 3 months, for the purpose of a pending personnel action. On 25 March 1996, he again extended his enlistment for a period of 3 months for the same reason. He again extended his enlistment on 1 August 1996 for a period of 3 months pending a bar review. On 26 November 1996, he extended his enlistment for a period of 1 month pending a personnel action.

On 28 February 1996, a line of duty (LOD) investigation determined that the applicant's motorcycle accident was alcohol related and "Not in the line of duty."

On 8 March 1996, the commander notified him that he was recommending that he be barred from reenlistment based on the GOLOR. The applicant submitted an appeal of the bar; however, the commander approved it. The bar was reviewed after 6 months and was subsequently removed.

On 5 June 1996, the applicant's commander notified him that he was considering disqualifying him for award of the GCM due to his receipt of a GOLOR on 19 January 1996. The applicant indicated that he would make a written rebuttal.

On 13 December 1996, he reenlisted for a period of 5 years. At the time of his reenlistment he indicated that he had been charged with communicating a threat in 1994 in Fayetteville and that no judgment was made against him.

The applicant requested redress under article 138, Uniform Code of Military Justice (UCMJ) from the Secretary of the Army, who directed that a second LOD investigation be conducted.

On 1 April 1997, a subsequent LOD investigation determined that the applicant's motorcycle accident was "In the line of duty." The investigating officer indicated in his investigation that two doctors and a nurse noted the smell of alcohol from the applicant at the time he was admitted, that a blood test was taken for medical screening, which required no chain-of-custody as required for a legal blood alcohol test. Lab personnel indicated that the results of the blood-alcohol were computed by hand and that there existed a possibility of error.

The investigating officer indicated that the applicant was a heavy non-smoking tobacco user, which could account for the smell, that he denied using alcohol on the date in question, a witness corroborated his assertion and a witness saw the accident at the time. The Blood alcohol level indicated in the hospital blood test is close to comatose and was not consistent with the applicant's operation of a motorcycle. The highway patrolman annotated no alcohol involvement on the accident report and the witness of the accident, the first on the scene, did not notice any signs of alcohol. Accordingly, there was no hard evidence to indicate that the applicant's injuries did not occur in the line of duty.

The applicant departed for assignment to Korea on a 1-year tour in May 1997. He was subsequently scheduled to attend the ANCOC from July to September 1998.

On 6 April 1998, while stationed in Korea, a memorandum was dispatched to the applicant informing him that the Calendar Year 1998 Master Sergeant Promotion Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on his disqualification for award of the GCM. The applicant appealed the bar to reenlistment and his appeal was granted on 6 August 1998.

In December 1999, he appeared before a Military Occupational Specialty Medical Retention Board (MMRB) at the 121^st Evacuation Hospital in Seoul, Korea. The MMRB determined that the applicant had a P3 physical profile for back pain and that he could not perform the duties of his MOS in a worldwide field environment. The MMRB recommended that he be referred to the Army Physical Disability System for review by medical and physical evaluation boards (MEB/PEB).

He departed Korea and was transferred to Brooke Army Medical Center, San Antonio, Texas, in May 2000.

On 5 June 2001, orders were published which revoked his promotion to the pay grade of E-7, due to his administrative removal from the promotion list.

On 13 February 2002, the PERSCOM NCOES Branch dispatched a memorandum to the PERSCOM Promotions Branch which recommended that the applicant be reinstated to the promotion list to the pay grade of E-7 because he had been exonerated of all occurrences which led to his flagging actions and no-shows, that resulted in his removal and reduction.

In a separate memorandum addressed to the applicant from the PERSCOM on 19 February 2002, the applicant was notified that a decision had been made by the Noncommissioned Officer Education System (NCOES) Reinstatement Panel to reinstate him to the Promotion Selection List.

On 19 February 2002, orders were published by the Total Army Personnel Command (PERSCOM), which reinstated his promotion to the pay grade of E-7, effective 1 January 1994.

On 31 May 2002, in response to a congressional inquiry, officials at the PERSCOM informed the congressional representative that current promotion policy allows a soldier to be promoted to the pay grade of E-7 conditionally and that the soldier must attend and complete the ANCOC in order to keep the promotion. To date, the applicant had not met the conditions of his promotion to the pay grade of E-7 and thus was ineligible for promotion consideration to the pay grade of E-8.

The applicant applied to this Board requesting that the GOLOR and disqualification for award of the GCM be removed from his OMPF. He also requested that he be awarded the GCM and that the correct "In line of Duty" LOD investigation be placed in his OMPF in lieu of the "Not in Line of Duty" LOD investigation that was filed in his OMPF. On 24 October 2002, the Board directed that the GOLOR, the disqualification for award of the GCM and the 28 February 1996 LOD be expunged from his OMPF, that the 1 April 1997 LOD be filed in his OMPF and that he be awarded all Good Conduct Medals he was entitled to receive, since the second award. The proceedings were summarized in Board proceedings AR2002071043.

On 6 February 2003, the applicant was retired by reason of physical disability in the pay grade of E-7. He had served 21 years, 6 months and 9 days of total active service.

A review of the available records fails to show that the applicant was ever awarded the Good Conduct Medals previously directed by the Board in proceedings (AR2002071043) on 24 October 2002.

Army Regulation 600-8-19 prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel. It provides, in pertinent part, that effective 1 October 1993, the Army linked NCOES to promotion to the pay grade of E-6, E-7 and E-9. Personnel promoted to the pay grade of E-7 were required to complete the ANCOC for promotion to the pay grade of E-7. However, soldiers who were selected for promotion to the pay grade of E-7 who had not met the NCOES requirement would be promoted conditionally. Soldiers who fail to complete or attend a scheduled NCOES class will be administratively reduced and removed from the list. Under the regulation that went into effect 2 May 2003, a conditional promotion to the pay grade of E-7 will be for a period not to exceed 12 months.

Army Regulation 614-200 provides the policies and procedures that apply to attendance at service schools. It provides, in pertinent part, that temporary duty (TDY) attendance at NCOES courses and return to the overseas command is authorized provided the soldier will have at least 6 months remaining to serve in the overseas command after completing the course, which is also the service remaining obligation for 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 LOD investigation initially conducted found that the applicant's injuries were not in the line of duty and that the accident was alcohol related. It appears that the evidence of the blood-alcohol test administered at the time of his hospital admission as well as the notes by medical personnel at the time, who indicated that they smelled alcohol from the applicant, was the basis for the determination. It also appears that this information also served as the basis for his receiving a GOLOR, denial of the good conduct medal and a locally imposed bar to reenlist by his unit commander.

2. While the applicant may believe that his commanders unjustly accused him of driving while intoxicated, the Board finds that the commanders, as well as the LOD investigating officer, used reasonable judgment at the time, based on the evidence that was available to them and given his previous offenses in Fayetteville.

3. However, the applicant exercised his appeal rights, which resulted in another investigation (LOD) being conducted and was able to raise reasonable doubt as to the validity of the evidence used against him, which determined that his accident was alcohol related.

4. While the investigating officer did not prove the applicant was not under the influence of alcohol at the time of his accident, he raised enough doubt as to the accuracy and legality of the blood test to change the finding in favor of the applicant.

5. The applicant was able to overcome the subsequent sequence of events that occurred by further exercising his appeal rights. As a result, he overcame his bar to reenlistment and through the Board's action, the GOLOR, the disqualification for award of the GCM and the first LOD were removed from his records. Additionally, through his appeal, he was reinstated to the promotion list as a result of his appeal to the NCOES Reinstatement Panel and regained his promotion to the pay grade of E-7.

6. However, the Board notes that the applicant was promoted in January 1994 with full knowledge that he was required to attend the ANCOC. He was not in the motorcycle accident until July 1995, a full 18 months after his promotion, and there is no evidence to suggest that he attempted to attend the ANCOC during that period or after his December 1996 reenlistment or that he was prevented from doing so. Additionally, the Board notes that the applicant was assigned to Korea for a 1-year tour in May 1997 and he apparently extended his tour twice, because he did not depart until May 2000. While the first year of delay is understandable, given his subsequent voluntary extensions, the board finds no evidence to suggest that he was denied the opportunity to attend the ANCOC in a temporary duty status as long as he could return to Korea for at least 6 months after completing the ANCOC. His failure to request attendance at the ANCOC in this case amounted to a self-imposed delay of attendance at the ANCOC.

7. Although the applicant's request to the NCOES Reinstatement Panel is not present for review by the Board. It is reasonable to presume that at the time he submitted his request, he understood that he was still required to attend the ANCOC in order to retain the pay grade of E-7. The Board finds no evidence to suggest that he was granted a waiver of that requirement and thus should have requested attendance at the earliest class available. Accordingly, his contention that if his attendance at ANCOC was waived for promotion to the pay grade of E-7, it should have been waived for E-8 as well, is without merit.

8. While the applicant would have the Board to believe that he was unjustly denied the opportunity to attend the ANCOC, in reality, his failure to attend was the resultant cause of his failure to pursue attendance either before his accident, after the removal of his bar to reenlistment or after being reinstated to the promotion list.

9. In actuality, the applicant should not have been considered for promotion to the pay grade of E-8 by the 1998 Master Sergeant Selection Board that determined he should be barred from reenlistment, because he was not qualified in the pay grade of E-7 (NCOES requirement) at the time. Therefore, he was properly not further considered for promotion to the pay grade of E-8, in accordance with the applicable regulations.

10. 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.

NOTE: In the event that the applicant has not been awarded his third and subsequent awards of the GCM as directed by Board proceedings AR2002071043 dated 24 October 2002, the Army Review Boards Agency (ARBA), St. Louis will be requested to accomplish the action as directed by the Board in that case.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___fe ___ ___gw___ __au____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086730
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/11/04
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000/PROMOTION
2.
3.
4.
5.
6.