RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 December 2003
         DOCKET NUMBER: AR2003089643


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Eloise C. Prendergast		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 permission to attend the Advanced Noncommissioned Officer Course (ANCOC); retroactive pay from 1999 for his promotion to E-6 in 2000; and retroactive pay for sergeant first class, E-7 from the convening of that board in December 2002.

2. The applicant states that he was in the New York Army National Guard (NYARNG) and transferred to the U. S. Army Reserve (USAR) in 1995. He has been trying to get into the Basic NCO Course (BNCOC) since 1995. The main problem was the lack of knowledge of the pertinent regulation by his reserve unit. He was constantly told that he needed the Primary Leadership Development Course (PLDC) before he could attend BNCOC. On his own, he found National Guard Regulation (NGR) 600-200, which said that a sergeant with a date of rank before 1 October 1992 does not need PLDC to attend BNCOC. His USAR battalion manager told him that the regulation does not apply to the USAR. In 1999, his supervisor showed him a Training and Doctrine Command (TRADOC) regulation that says an active duty or Reserve Component sergeant with a date of rank before 1 October 1992 does not need PLDC to attend BNCOC.

3. The applicant further stated that his supervisor showed the regulation to the battalion manager and they then promoted him to staff sergeant in 2000. His promotion was tied up from 1999 until 2000 because of the mistaken belief that he needed PLDC. Still, when he applied for BNCOC in 1999, he was told no orders would be issued for him. When he applied in 2000, he was told that no seats were available. When he applied in 2001, he was again told that he needed PLDC first. When he applied in 2002, he was told no funds were available. After 7 years of constant delays and doubts, he hopes the Board can resolve his problem.

4. The applicant provides E-5 promotion orders; an extract from NGR 600-200; an extract from TRADOC Regulation 351-10; a 301st Area Support Group, Fort Totten, NY Memorandum for Pre-PLDC Classes dated April 1998; orders dated 28 February 1995 assigning him to the 316th Adjutant General Company (Postal), 77th U. S. Army Reserve Command; a BNCOC course application dated around August 1999; two BNCOC course applications dated 17 October 2000 as supporting evidence; and a copy of his NCO Evaluation Report (NCOER) for the period ending October 2002

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

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CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error and injustice which occurred around 1999. The application submitted in this case is dated 11 April 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted in the ARNG on 21 September 1983. He was promoted to sergeant, E-5 on 1 June 1989. He transferred to the USAR in May 1994. His ARNG DA Form 2-1 (Personnel Qualification Record) does not show that he completed PLDC as of May 1994.

4. The applicant was assigned to the 316th Adjutant General Company (Postal) effective 18 February 1995.

5. The applicant provides a BNCOC course application for a course beginning on 21 August 1999. The application is not annotated with a reason for no action being taken on the request.

6. The applicant's promotion to staff sergeant orders are not available but his NCOERs show he was promoted to staff sergeant on 1 May 2000.

7. The applicant provides a BNCOC course application dated17 October 2000. On 18 October 2000, it was annotated "No seats are available for course."

8. The applicant provides a second BNCOC course application dated 17 October 2000. On 19 October 2000, it was annotated "Need to see 1059 for PLDC."

9. The applicant's NCOER for the period ending October 2002 show he received one "excellence" and four "success" ratings from his rater in the areas of NCO Responsibilities. His rater rated his overall potential for promotion as "among the best." His senior rater rated his overall performance and overall potential for promotion as "1" ("1" to the highest degree and "5" to the lowest degree).

10. Per conversation between the applicant and the Board analyst on 28 November 2003, he indicated that he is currently scheduled to attend BNCOC in January 2004.

11. Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), chapter 3 prescribes policies and procedures for the promotion of soldiers assigned to troop program units not serving on active guard/reserve status. Paragraph 3-2b states that field grade commanders of any unit authorized a commander in the grade of O-5 or higher may promote soldiers assigned to units in their command. Paragraph 3-3a states that soldiers selected for promotion by boards are identified on a list maintained by an Army Reserve Command/General Officer Command/Regional Support Command. Promotion from the list is by sequence and military occupational specialty based on a position vacancy within a reasonable distance of the soldier's residence.

12. Army Regulation 140-158, paragraph 3-9a states that, to standardize promotion qualification throughout the USAR and to ensure promotion of the best qualified soldiers, promotion selection board action is required for all promotions to sergeant and staff sergeant. Paragraph 3-9b states that E4s and E5s may be recommended for selection board consideration without regard to position vacancy provided they meet basic eligibility requirements. Paragraph 3-9c states that promotion to sergeant and staff sergeant will be based solely on order of sequence by military occupational specialty on the recommended list; an appropriate vacant position; and promotable status.

13. Army Regulation 140-158, paragraph 3-28a states that the selection and promotion process for senior enlisted grades is centralized at Army Reserve Command/General Officer Command/Regional Support Command headquarters. Paragraph 3-28b states that all soldiers assigned to a TPU who reside within a reasonable distance of a current or projected position vacancy will be considered by the promotion selection board. Soldiers who do not live within a reasonable distance of announced position vacancies or projected vacancies may request consideration by the selection board. This is provided the soldier is within the announced zone of consideration and is in a promotable status.

14. Army Regulation 140-158, paragraph 3-30 states that the promotion authority will announce the convening date of the senior enlisted promotion selection board, the location and description of the current and projected vacancies, and the zones of consideration for promotion selection.

15. Army Regulation 140-158, chapter 8 specifies the NCO Educational System (NCOES) requirements for each NCO rank. In pertinent part, it states that E-7s must be a graduate of ANCOC. E-6s must be a graduate of BNCOC. E-5s must be a graduate of PLDC. 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 complete 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.
16. TRADOC Regulation 351-10 (Institutional Leader Training and Education) states, in pertinent part, that Active and Reserve component soldiers promoted to their current rank prior to 1 October 1992 are considered as NCOES-qualified commensurate with their current rank.

17. On 6 November 2003, the proponent of Army Regulation 140-158 verified that the information in TRADOC Regulation 351-10 concerning NCOES and soldiers promoted to their current rank prior to 1 October 1992 is correct. It was erroneously left out of Army Regulation 140-158 and will be placed back in when the regulation is updated.

DISCUSSION AND CONCLUSIONS:

1. The applicant was promoted to sergeant, E-5 on 1 June 1989. Since he was promoted to that rank prior to 1 October 1992, he was considered to be NCOES-qualified in that rank (i.e., that he had the equivalent of a PLDC graduation).

2. The applicant was not required to complete PLDC prior to attendance at BNCOC. His unit and school scheduling personnel erred when they required him to complete PLDC prior to allowing him to attend BNCOC. It is concluded that his career has been unjustly held back due to this error.

3. The applicant is scheduled to attend BNCOC in January 2004; however, he should have been scheduled for BNCOC earlier in his career. His latest NCOER shows he is successfully performing duties as an E-6. As a matter of equity, his records should be corrected to show that he has already completed BNCOC.

4. E-5s may be recommended for selection board consideration without regard to position vacancy provided they meet basic eligibility requirements. Promotion is then made based upon an appropriate vacancy. E-5s may be promoted to staff sergeant on the condition he or she enroll in BNCOC within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date. This is what occurred when the applicant was promoted to staff sergeant in May 2000 even though he has not yet attended BNCOC.

5. There is insufficient evidence to show the applicant's commander would have recommended him for promotion to staff sergeant in 1999, and that there was a valid vacancy into which he could have been promoted, but for the fact his unit mistakenly believed he had to have completed PLDC prior to attending BNCOC.

6. There is insufficient evidence to show the applicant was eligible for promotion consideration to sergeant first class but was not considered because he did not complete BNCOC. There is insufficient evidence to show what, except for the fact he has not yet attended BNCOC, has unjustly held up the applicant's attendance at ANCOC.

BOARD VOTE:

__mdm___ __rjw___ __ecp___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by granting him constructive credit for BNCOC.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to permission to attend ANCOC, retroactive pay from 1999 for promotion to E-6; and retroactive pay for promotion to E-7.




                  __Mark D. Manning____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089643
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	131.00
2.
3.
4.
5.
6.