MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003089411

         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast		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: That his retirement grade be adjusted from pay grade E-5 to pay grade E-6.

APPLICANT STATES: He enlisted as a 92Y30 (Unit Supply Sergeant) on 27 April 1997. He states that he worked in an E-6 position during his enlistment. He was informed of his promotion to E-6 but due to his medical condition, he was unable to attend school or reenlist. He also states that the position of E-6 should be awarded to him since his rank progression was altered based on a medical condition that was incurred in service. In support of his application, he submits a supplemental letter; physical disability information (Page 1 of 2); a DA Form 199 (Physical Evaluation Board Proceedings); a promotion e-mail; temporary duty orders; a statement from a medical doctor; a DA Form 4187 (Personnel Action); and a DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the period ending October 2001.

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

The applicant served in the Regular Army from 25 August 1987 through 10 December 1991 and was transferred to a Reserve unit to complete his service obligation.

The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to staff sergeant effective on 20 January 1994.

On 27 April 1997, he was ordered to active duty in the Active Guard Reserve in the rank of sergeant (SGT).

The applicant successfully completed advanced individual training in military occupational specialty 92Y (Unit Supply Specialist).

Department of the Army, U.S. Army Reserve Personnel Command, St. Louis, Missouri Orders E-01-000052, dated 7 January 2000, assigned the applicant for temporary duty at Fort Lee, Virginia to attend the Unit Supply Specialist Basic Noncommissioned Officer Course (BNCOC).

The applicant provided a copy of a DA Form 4187 which shows he requested deferment from the Unit Supply Specialist BNCOC scheduled to begin on 28 February 2000. This document shows that the applicant was unavailable for training during the period "27FEB2000-9MAY2000."

Information obtained from the U.S. Army Reserve Personnel Command revealed that the applicant was considered by the CY2000 Staff Sergeant, Reserve Component AGR Promotion Board and was selected for promotion. The applicant was conditionally promoted to the rank of staff sergeant (SSG)/pay grade E-6; however, the date of rank and effective date is not available.
The applicant also provided a copy of an e-mail dated 30 June 2000 from a sergeant first class from the U.S. Army Reserve Personnel Command. This
e-mail congratulated the applicant on his promotion to staff sergeant.

A Medical Evaluation Board (MEB) evaluated the applicant on 18 September 2001. He was diagnosed as having occipital neuralgia and cervical degenerative arthritis affecting C6/7. The MEB proceedings show the approximate date of origin as "2000." These proceedings show that the medical conditions were incurred while the applicant was entitled to base pay and did not exist prior to service. The applicant was referred to a Physical Evaluation Board (PEB).

The applicant received a Change of Rater NCOER for the period ending October 2001. The NCOER shows his rater was the Platoon Leader in the rank of sergeant first class; the senior rater (SR) was the Company Commander in the rank of captain; and the reviewer was the Battalion Commander in the rank of lieutenant colonel.

Part III (Duty Description) of the NCOER for the period ending October 2001 shows the applicant's principal duty title as Supply Sergeant in duty MOS 92Y30.

Part IV(c) (Physical Fitness and Military Bearing) shows the entries "APFT 0107/PROFILE" and HEIGHT/WEIGHT "70/186 YES." The rater placed an "X" under "Success" with the following comments: "maintains good military appearance," "instills military bearing & courtesy," and "exceptional mental toughness and sound judgement."

Under Part Va, the rater evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable." The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade: (1) Supply NCO, (2) Battalion Supply Sergeant, and (3) Senior Supply Sergeant.

The SR evaluated the applicant's overall performance as "Successful" with a "2" rating. The SR evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Superior" with a "1" rating.
The SR also provided the comments: "honest and truthful," "strives to support the company and the commander at all times," "demonstrates initiative, sound judgement, and strong knowledge," "schedule for BNCOC & promote with peers."

On 28 November 2001, an informal PEB found the applicant unfit for military service due to cervical degenerative arthritis affecting C6/7, as demonstrated on MRI, without any specific history of trauma or injury under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5003. Based on the medical evidence of record, the PEB concluded that the applicant's medical condition prevented performance of duty in his grade and specialty. The PEB proceedings stated that ratings of less than 30% for soldiers with less than 20 years active service require separation with severance pay in lieu of retirement. The PEB recommended that the applicant be separated with a 0 percent rating and that the applicant be separated with severance pay, if qualified. The applicant concurred and waived a formal hearing of his case.

The evidence of record shows the applicant was released from an active status in the Active Guard Reserve on 4 April 2002.

A Physical Disability Information page provided by the applicant shows his highest grade satisfactorily held as "E5" and his rank as "SGT."

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 8-2 states that a noncommissioned officer (NCO) must be a graduate of the educational course required by the NCO Education System (NCOES) for his or her current grade. A soldier with the rank of Staff Sergeant must be a graduate of the BNCOC.

Army Regulation 140-158, paragraph 8-19 states that a soldier may be promoted to Sergeant through Master Sergeant on the condition he or she enroll in and successfully completed the course required for that grade. If the grade requires the soldier be a graduate of BNCOC, the soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date.

Army Regulation 140-158, paragraph 1-14v states that a soldier will not be advanced or promoted as long as he or she is not a graduate of the NCOES course required for his or her current grade.

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. 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.

2. The evidence of record shows the applicant was selected to attend BNCOC in February 2000.

3. The applicant was promoted to the rank of SSG/pay grade E-6 during CY2000 conditional upon his completion of BNCOC.

4. The evidence of record shows the applicant voluntarily requested deferment from BNCOC.

5. An informal PEB convened in November 2001 which determined that the applicant was unable to perform his military duties in his grade and specialty. As a result, he was released from an active status in the Active Guard Reserve in the rank of SGT/pay grade E-5 without completing the required NCOES course.

6. In accordance with Army Regulation 140-158, the applicant was unable to retain his promotion to SSG/E-6 because he did not complete the required training.

7. The applicant has failed to show through the evidence submitted with his application or the evidence or record that an error or injustice exists in his case. Therefore, there is insufficient basis to correct his records to show his pay grade as "E-6."

8. 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

RVO____ RJO____ ECP_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089411
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031009
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	129.0500
2.
3.
4.
5.
6.