RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         06 JANUARY 2005
      DOCKET NUMBER:  AR20040000768


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his administrative reduction
from pay grade E-7 to pay grade E-6 be rescinded and that he be permitted
to remain on active duty.

2.  The applicant states that he was conditionally promoted to pay grade E-
7 in September 2002 and began his Advanced Noncommissioned Officer Course
(ANCOC) in March 2003.  He notes that while attending ANCOC he failed “the
Push-up portion of the entry Army Physical Fitness Test (APFT).”

3.  The applicant states that his APFT failure was “based on an
undocumented, pre-existing medical condition.”  He states that following
his release from ANCOC he was directed to seek medical advice for his left
elbow which resulted in the discovery that he had “arthritis in his left
elbow and a slight deformation of the bones in [his] left arm from a
previous injury.”  As a result of this discovery he was given a temporary
profile.  He states that the assessment of the doctor was that “an increase
in intensity of working out prior to [his] attendance at ANCOC exacerbated
this condition.”

4.  The applicant states he submitted an appeal to the promotions branch
but was turned down.

5.  The applicant states that his academic evaluation report and a
subsequent performance evaluation report on which his rater had no choice
but to rate his performance as “needs improvement,” do not provide an
accurate description of why he was released from ANCOC and describe him as
unprepared, lacking confidence, and not motivated.

6.  He notes that since his release from ANCOC and administrative
reduction, the Army has suspended conditional promotions and argues that if
his events had taken place after 1 January 2004 he might still have been
released from ANCOC but would not have had to endure the hardships
resulting from the administrative reduction in rank.  He states that he was
required to pay the difference between E-7 and E-6 pay for the months
between April and September 2003 and is now forced to retire upon reaching
20 years of service.

7.  The applicant provides a copy of his June 2003 request for
reinstatement to the E-7 promotion list and ANCOC, including a copy of the
academic evaluation report releasing him from ANCOC.


CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty on 7 September 1984 and served continuously through a series of
reenlistments. In November 2001 he executed an indefinite reenlistment
contract.  He was promoted to pay grade E-6 in July 1996.  His performance
evaluation reports, prior to December 1999, were generally successful with
ratings in the second block for over performance and potential by his
senior raters.  Subsequent to the December 1999 report his senior raters
consistently rated him in the top block.  He has received multiple
decorations, including several joint awards and a Meritorious Service
Medal.

2.  Records available to the Board do not contain a copy of the academic
evaluation report which released him from ANCOC in April 2003 or the
performance evaluation report on which he indicated his rater had to rate
him as “needing improvement.”  The applicant, however, did include a copy
of the academic report as part of his application to this Board.

3.  The records do, however, contain a report which was rendered in July
2002 for the 6-month period ending in June 2002.  That report indicates
that the applicant had last passed an APFT in December 2001.

4.  On 1 September 2002 the applicant was conditionally promoted to pay
grade E-7.  The orders announcing the promotion indicated that the orders
would be revoked and the individual’s name removed from the centralized
list if he/she failed to meet the NCO (noncommissioned) educational
requirement.  It noted that Soldiers promoted to pay grade E-7 were
required to complete ANCOC.

5.  Documents included with the applicant’s petition to this Board, as part
of his June 2003 appeal packet for reinstatement, indicate that the
applicant was notified on 10 April 2003 that he was being considered for
academic relief from ANCOC for failing the initial entrance APFT.  It noted
that he was tested on
2 April and completed only 30 push-ups for a score of 56 and tested again
on
10 April at which time he completed only 21 push-ups for score of 47.  The
applicant acknowledged receipt of the notification and indicated that he
would not submit an appeal.  His relief from ANCOC was approved and the
applicant again indicated that he would not appeal.

6.  His academic evaluation report was rendered on 16 April 2003 indicating
that he failed the initial and subsequent retest of the ANCOC entrance APFT
and noted that he “clearly neglected to prepare for an entrance requirement
to an NCOES school; did not possess the motivation or confidence level
expected of a senior Noncommissioned Officer.”

7.  A 19 May 2003 memorandum from the then United States Total Army
Personnel Command informed the applicant that as a result of his release
from ANCOC, due to his APFT failure, his name was removed from the
promotion list. Orders issued on 19 May 2003 revoked his conditional
promotion to pay grade
E-7 but permitted him to retain his pay for the period 1 September 2002,
the effective date of the conditional promotion, and 10 April 2003 when he
was released from ANCOC.

8.  On 13 May 2003, more than a month after the applicant was released from
ANCOC, he was issued a temporary physical profile for “left elbow pain.”
The profile indicated that he could do push-ups at his own pace and number.
 A statement, attached to the profile and dated 23 May 2003, notes that the
applicant “has arthritis in his left elbow.”  It states that due to this
arthritis, the applicant “was unable to do the required number of
repetitions in the Push-Up event of the APFT given in April 2003.”

9.  On 13 June 2003 the applicant received a permanent “2” profile for his
chronic left elbow injury.  The profile precluded any push-ups.  Attached
to that profile was a 1 July 2003 statement, authenticated by the same
individual who authored the May 2003 profile and statement, noting that the
applicant had difficulty doing push-ups and stated that he had a fractured
left humerous as a child.  The physician noted that it was possible, due to
this injury, that the applicant developed arthritis in his left elbow and
has some minor changes in the humeral ulnar notch.  The statement concluded
that “at this time there is little question that he had this condition
prior to 31 March 2003” although there was “no mention of complaints
regarding his left elbow in his Medical Treatment Record prior to 14 April
2003.”

10.  On 20 June 2003 the applicant initiated his appeal to be reinstated to
the E-7 promotion standing list.  In his appeal, included as part of his
application to this Board, he noted that his “undocumented medical
condition” manifested itself “in the period prior to [his] attendance at
ANCOC.”  He states that in preparation for his attendance at ANCOC he began
working out at least twice a day beginning in February 2003.  He notes that
during this time his chain of command evaluated his program and each time
the push-up event was evaluated it was above the minimum required for his
age group.  He stated that over time, however, he noticed increasing
difficulty while doing push-ups but believed he would be able “to work
through this difficulty and pass the APFT at ANCOC.”  He also indicated
that he did not want to jeopardize attendance at ANCOC by getting a profile
for his elbow.

11.  The applicant noted that following his first failure of the APFT he
worked on his push-ups on his own time and did this with zeal.  He stated
that in addition to scheduled training sessions he also did sets of push-
ups during breaks in between classes and worked out at the gym in the
evening.  After working out like this for 4 days, he notes his “elbow felt
worse than ever.”  He states he asked the ANCOC cadre to explain the
ramifications of failing the APFT as well as those of getting a profile and
was told the result would be the same, he would be released from ACNOC and
his local chain of command would determine the resulting course of action.
He states that based on this information he felt he had no choice but to
take the second AFPT.

12.  The applicant argued that upon his return to his parent unit he was
directed “to seek medical attention immediately” which resulted in the
diagnosis of arthritis and ultimately in a permanent physical profile.  He
stated because of his administrative reduction he would reach his retention
control point in September 2004, and that the financial ramifications to
him and his family would be significant.  He included copies of his
performance evaluation reports and support for his reinstatement from
various members of his chain of command.

13.  One of the statements, included with his appeal for reinstatement,
noted that in February 2003 the applicant was “selected to attend an ANCOC
class” and that immediately upon notification he, (the author of the
statement), began a physical training program with the applicant.  He
stated that over the next several weeks the applicant’s ability to
correctly do push-ups was obviously getting worse and he started to
complain of pain in his elbow.  He notes that he sought information about
deferring the applicant from ANCOC but because one of the requirements for
conditional promotion is that the Soldier attend ANCOC within one calendar
year the decision was made to send the applicant to ANCOC.

14.  The applicant’s appeal for reinstatement was denied in August 2003.

15.  On 30 September 2004 the applicant was honorably discharged, in pay
grade E-6, and his name placed on the retired list the following day.

16.  Army Regulation 600-8-19 prescribes the policy for enlisted
promotions.  It provides for the conditional promotion of Soldiers whose
sequence numbers are reached for promotion to pay grade E-7 and who have
not completed or attended ANCOC.  It furthers provides that Soldiers who
are "defined as failing to attend, having failed to complete for cause or
academic reasons or being denied enrollment to the required NCOES
[Noncommissioned Officer Education System] course for cause" will have
their names administratively removed from the centralized promotion list.
If the Soldier has been conditionally promoted they will also be
administratively reduced in grade.

17.  In November 2003 the Army’s personnel command released a message
announcing that the NCOES requirement for promotion to pay grades E-5
through E-7 was suspended.  It noted that Soldiers administratively reduced
prior to 1 January 2004 based on their inability to complete the required
NCOES course were not affected by this decision.

18.  The Army's ANCOC general attendance policy, outlined by the NCO
Education System (NCOES) branch at the Army’s personnel center, states that
Soldiers who, on or after 1 October 1993, accept a conditional promotion,
and who are subsequently denied enrollment, declared a no-show, become
academic failures, or otherwise do not meet graduation requirements, will
have their promotions revoked and will be administratively removed from the
centralized promotion list.  De facto status will be granted and they will
retain the pay incurred from the effective date of promotion to the date
the Soldier was disenrolled, denied enrollment, or failed to show on the
report date for that class. It notes that Soldiers who must terminate their
course early for bona fide medical or compassionate reason will not have
their promotions revoked.  However, those promotions remain conditional
until completion of the required course.  The deferment policy outlined
indicates that requests for deferment may be considered for medical or
compassionate reasons.  Further, the NCOES policy indicates that Soldiers
declared a no-show, who feel there was an error, injustice or some other
type of wrongdoing that contributed to this status, may request
reinstatement through the Army’s NCOES Reinstatement Panel.  If the voting
panel finds irregularities, it can reinstate the Soldier's name on the
promotion selection list and reschedule attendance at the ANCOC.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board suggests that the applicant had not
taken an AFPT since December 2001, nearly 15 months prior to attending
ANCOC and only commenced an “intensive” training program” after he was
notified of his ANCOC date, in spite of the fact that he had been
conditionally promoted to pay grade E-7 in September 2002.  The applicant
should have been well aware that completion of ANCOC was a requirement to
retain his promotion to pay grade
E-7.

2.  Additionally, not only should the applicant have known, but clearly
members of his chain of command, and members of ANCOC staff, would have
known that a bona fide medical condition was grounds for, at the very
least, deferral from course attendance or early release from the course, in
which case his conditional promotion would have remained valid.  The
evidence available to the Board, however, indicates that even though the
applicant said he experienced difficulty in doing push-ups prior to
attending ANCOC and continued to experience difficulty while attempting to
pass the APFT during ANCOC, he never once raised the medical issue and/or
offered that as a possibility when being considered for release from ANCOC.

3.  The applicant’s argument that he thought he could work through the pain
and did not want to jeopardize his attendance is not sufficiently
compelling to show that his release from ANCOC was erroneous or unjust,
when more suitable avenues to deal with his situation were available to him
throughout the entire process.  The applicant would have had multiple
opportunities to seek medical assistance prior to and after reporting to
ANCOC and should not now be able to use a medical condition as
justification to have his promotion reinstated.  To do so would essentially
enable the applicant to know he was having problems which might affected
his performance, chose to ignore those problems, and then use those
problems as an excuse when things did not work out as he had hoped.

4.  The fact that the NCOES requirement for promotion was suspended in
January 2004, or the financial implications of having to retire in a lower
grade, are also not sufficiently compelling to conclude that any error or
injustice resulted from his release from ANCOC for failing to meet physical
training requirements.  It also does not serve as a basis to grant the
requested relief based on equity.

5.  The applicant was allowed to retain E-7 pay from the date of his
conditional promotion until he was released from ANCOC.  He should have
been aware that continued receipt of the high pay beyond that period would
result in recoupment of the overpaid funds.  The applicant has not shown
evidence of any error or injustice in the recoupment of these funds which
would justify returning the funds to him.

6.  While the Board is certainly sympathetic to the applicant’s plight, the
available evidence does not support a conclusion that his release from
ANCOC was based on error or injustice and as such, relief is not warranted
in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE___  ___RD__  ___YM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _______Fred Eichorn_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000768                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050106                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |103.00                                  |
|2.                      |129.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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