RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 February 2004
         DOCKET NUMBER: AR2003088745

         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:

Mr. John N. Slone		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Linda M. Barker		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his promotion to first sergeant/E-8 (1SG/E-8) be restored.

2. The applicant states, in effect, that he was contacted by his unit personnel officials in the Virginia Army National Guard (VAARNG) in December 1996, and informed that he was first on the list for promotion to the grade of E-8. He was further advised that the 1SG of one of the batteries had been killed and he was asked if he would accept that position. At that time, a request for his promotion along with a request for a ruling on the validity of his Advanced Noncommissioned Officer Course (ANCOC) completion was forwarded to the 29th Division.

3. The applicant states that on 14 February 1997, orders were published that authorized his promotion to 1SG/E-8 and that transferred him to the 1SG/E-8 position in B Battery, Franklin, Virginia. On 14 March 1997, orders were published revoking his promotion based on his not having proper ANCOC credit. He claims that at this point, he provided the forms showing that he completed the ANCOC by correspondence and an electronic message from Fort Eustis, Virginia verifying that the correspondence course was accepted as valid course completion by the Army.

4. The applicant further indicates that he signed his promotion worksheet on
31 October 1996, and that unit rating schemes and alert rosters show he was still performing 1SG duties as of 11 August 1997. He states that he attended the ANCOC at Fort Indian Town Gap, Pennsylvania from 14 September through
26 September 1998 in order to satisfy the ANCOC requirement; however, upon his completion of this course, he was informed that it would not count until the next promotion list. He also indicates that leave and earnings statements (LESs) on file also confirm that he was paid as a 1SG/E-8 from February through April 1997.

5. In support of his application, the applicant provides the 31 attachments listed on the enclosed facts list.

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CONSIDERATION OF EVIDENCE:

1. As of the date of his application to this Board, the applicant was still serving as a member of the VAARNG.

2. On 19 December 1996, the Office of the Adjutant General (OTAG), VAARNG, published the 1996 E-8 promotion list. The applicant’s name was listed first
(755 points) among those on the list in the military occupational specialty 16Z.

3. On 26 December 1996, a promotion request pertaining to the applicant was forwarded to the OTAG, VAARNG. It indicated that the applicant was then number one on the promotion list, and had agreed to accept a vacant 1SG position. Included in this request was an Academic Evaluation Report (DA Form 1059) that showed the applicant completed the ANCOC by correspondence course on 3 February 1987. However, the promotion request also asked that a determination be made regarding the applicant’s ANCOC correspondence course completion and whether it was creditable for promotion purposes.

4. On 14 February 1997, Orders Number 031-080 were published by the OTAG, VAARNG. These orders authorized the applicant’s promotion to E-8 and his assignment to the 1SG position of Battery B, 111th Air Defense Artillery, effective 7 February 1997.

5. On 14 March 1997, Orders Number 050-056 were published by the OTAG, VAARNG. These orders revoked the portion of Orders Number 031-081 that pertained to the applicant’s transfer to the 1SG position of Battery B, 111th Air Defense Artillery, and his promotion to E-8. The basis for the revocation was a determination that the applicant’s completion of the ANCOC by correspondence course did not satisfy the Noncommissioned Officer Education System (NCOES) requirement for promotion.

6. In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB). It states that they recommend approval of the applicant’s request based on the fact that he completed the ANCOC by correspondence within the time prescribed. As a result, the course should have satisfied the NCOES promotion requirement that was the basis for the revocation of the applicant’s promotion. On 23 January 2004, the applicant was provided a copy of this advisory opinion and given
10 days to provide any response. To date, he has failed to reply.

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7. The applicant provides a chronology of the events surrounding the promotion process that was prepared by his unit personnel technician. This sequence indicates that the basis for the revocation of the applicant’s promotion was an Inspector General (IG) investigation of a complaint, which indicated the applicant had not satisfied the NCOES requirement for promotion. The revocation action was accomplished without investigation or clarification of the issue with the applicant’s command. The applicant’s command was informed that the governing regulation did not allow promotion credit for correspondence course completion of the ANCOC. The applicant’s command made another effort to resolve this issue on 21 March 1997, when it was requested that the ANCOC credit issue be readdressed based on Army guidance that allowed credit for correspondence course completion. However, this request was never addressed by higher headquarters.

8. Department of the Army (DA) (DAMO-TRI) message 101819Z, October 1986, Subject: ANCOC/BNCOC Credit, established the deadline for the completion of the ANCOC/BNCOC through ACCP for Resident Course Credit as 1 June 1987.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s claim that his promotion revocation was unjust was carefully considered and it was found to have merit. DA policy established that ANCOC resident course credit would be granted for completion of the ANCOC by correspondence course on or before 1 June 1987. As evidenced by the NGB advisory opinion, this policy extended to the ARNG.

2. The evidence of record confirms that the applicant completed the ANCOC by correspondence course on 3 February 1987. Thus, he should have received resident course credit for this course for promotion purposes. Given the applicant’s ANCOC completion satisfied the Army NCOES promotion requirement and based on his being otherwise qualified for promotion at the time, it is clear that the revocation of his promotion was inappropriate and unjust.

3. In view of the facts of this case, it would now be appropriate to correct the applicant’s record by showing he was promoted to 1SG/E-8 on 7 February 1997, and that he has held and satisfactorily served in that grade through the present date. Further, the applicant should be provided any back pay and allowances that are due as a result of this correction.

BOARD VOTE:

_RTD___ __JS___ __LB ____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that insofar as records of the Virginia Army National Guard are concerned, The Adjutant General of the State of Virginia should correct the records of the individual concerned by:

a. rescinding the revocation of his promotion and reinstating his rank and pay grade to first sergeant/E-8, effective 7 February 1997;

b. showing that he has continued to serve in the rank and pay grade of first sergeant/E-8 in the Virginia Army National Guard through the present; and

c. correcting his pay records based on the changes outlined above.

2. That the individual concerned be provided all back pay and allowances due as a result of the corrections made by The Adjutant General of the State of Virginia, to include back pay due as a result of restoring his 7 February 1997 promotion to first sergeant/E-8.




                  John N. Slone
         CHAIRPERSON

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INDEX

CASE ID	AR2003088745
SUFFIX
RECON
DATE BOARDED	2004/02/10
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. 1023	106.0010
2.
3.
4.
5.
6.