RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040009089


      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. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 retirement grade be
adjusted to the rank of sergeant first class (SFC) vice staff sergeant
(SSG), based on satisfactory performance of duty at the grade of SFC over a
period of 3.5 years.

2.  The applicant states that he was promoted to sergeant first class on
           1 October 1999.  He was unable to attend the Advanced
Noncommissioned Officer Course (ANCOC) immediately because he was
recovering from cancer at the time.  Following a medical board and a return
to duty status decision he was identified as being in violation of Army
Regulation 600-9 (The Army Weight Control Program) and was reduced to
SSG/pay grade E-6.  He appealed that decision, and was later promoted with
back pay to SFC and was sent to ANCOC en route to Fort Drum.

3.  The applicant continues by stating that when he departed his unit in
Korea he was in full compliance with Army Regulation 600-9, but was
identified as being overweight when he reported for ANCOC and was denied
admission.  Upon arrival at Fort Drum he was found within compliance with
Army Regulation 600-9 and it was determined he was non deployable for this
medical condition going back to his original medical board.  He applied for
retirement from Fort Drum and spent less than 6 months there.  In closing
he states that he has been awarded a Veterans Administration disability
rating of 80% and that he was a model NCO and that his case was handled
irregularly at best.

4.  The applicant provides a copy of his ANCOC release packet, a copy of
his medical board results, a copy of his promotion orders dated 14
September 1999, a copy of his Legion of Merit, Meritorious Service Medal,
and Joint Service Commendation Medal, copies of two Noncommissioned
Officers evaluation reports, a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) dated 31 January 2004, a copy of his
retirement orders, three pages of emails referencing his ANCOC and
reassignment, and a copy of his Department of Veterans Affairs decision
letter dated 7 June 2004.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board show that the applicant entered active
duty on 10 January 1984 and served continuously through a series of
reenlistments.



2.  On 1 October 1999 the applicant was conditionally promoted to SFC/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 they
fail to meet the NCOES (Noncommissioned Officer Education System)
requirement, which was to complete ANCOC.

3.  There are no records available to the Board that would indicate he was
scheduled to attend ANCOC after being promoted to SFC.

4.  A 24 October 2001, the applicant was issued a DA Form 3349 (Physical
Profile) that assigned him limitation of running at his own pace and
distance; to walk or swim in lieu of running for APFT; no straps between
legs; wear protective mask over shoulder; and no assignment to isolated
areas where definitive urologist care (Armed Forces Hospital/Armed Forces
Medical Center) is not available.

5.  On 26 November 2001 memorandum from the United States Army Physical
Disability Agency informed the applicant that he had been found physically
fit to perform the duties of his office, grade, rank and MOS (Military
Occupational Specialty) and was deployable within the limitations of his
profile.

6.  Records show that on 3 April 2002, orders were published
administratively removing the applicant from the CY1999 sergeant first
class promotion list.  He was informed that he was being granted de facto
status for the period of              1 October 1999 thru 25 March 2002.

7.  The facts and circumstances pertaining to the applicant's request for
reinstatement are not present in his records.

8.  On 27 March 2003, a decision was made by the NCOES (Non-Commissioned
Officer's Education System) Reinstatement Panel to reinstate the applicant
to the promotion selection list.  He was informed that promotion linkage
required his successful completion of ANCOC, and that he must attend and
complete ANCOC as soon as practical.

9.  On 24 June 2003, the applicant was weighed in and taped upon arrival at
ANCOC.  His weight was 186 pounds and his body fat percentage was
determined to be 24.47 percent.  A Denied Enrollment memorandum, dated
 24 June 2003, indicated the applicant exceeded his maximum allowed body
fat percentage.  The school Commandant, by memorandum dated 24 June 2003,
notified the applicant that he was being denied enrollment to ANCOC for
failing to meet body composition standards in accordance with Army
Regulation 600-9.  He was informed that, as a consequence, his name would
be reported to PERSCOM (Total Army Personnel Command) and that a memorandum
would be sent to his chain of command addressing his failure to maintain
weight standards.  He acknowledged receipt that he received a copy of the
correspondence.

10.  On 14 July 2003, orders were published administratively removing the
applicant from the CY1999 sergeant first class promotion list.  He was
informed that he was being granted de facto status for the period of 25
March 2002 thru
24 June 2003.

11.  There is no record that the applicant submitted an appeal to the
reinstatement board.

12.  On 31 January 2004, the applicant was honorably discharged, in pay
grade E-6, with a date of rank of 1 August 1992, and his name was placed on
the retired list the following day.

13.  Army Regulation 600-8-19 (Enlisted Promotion and Reductions)
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 further 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.

14.  The Army's ANCOC general attendance policy, outlined by the 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 feels 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 applicant's argument that because of satisfactory performance of
duty at the grade of SFC he should be allowed to retire at that grade is
not supported by the evidence available to the Board.

2.  The applicant was scheduled to attend ANCOC.  He failed his taping by
exceeding his maximum allowed body fat percentage for enrollment to ANCOC.
Based on information provided by him he was more than aware that completion
of ANCOC was a requirement for promotion to SFC.

3.  Army Regulation established the policy that if a Soldier has been
conditionally promoted they will be administratively reduced in grade if
they have not completed or attended ANCOC.

4.  The evidence showed that the applicant was removed from the CY 1999
sergeant first list and then reinstated to the list by the reinstatement
panel. Although the record does not say why, it is reasonable to presume he
was removed for not completing ANCOC.

5.  The applicant stated that he was in full compliance with Army
Regulation   600-9 when he departed his unit in Korea and when he arrived
at his Fort Drum unit, this does not excuse the fact that he was not in
compliance with Army Regulation when he arrived at his ANCOC.  It was his
duty and responsibility to ensure that he was in compliance and he failed
to do so.

6.  The evidence which is available to the Board shows that the applicant
appeared before a Medical Evaluation Board and was found to be physically
fit to perform the duties in his rank and MOS.  There is no indication that
the applicant's medical condition ever precluded his performance of his
military duties.





7.  The fact that he is receiving disability compensation from the
Department of Veterans Affairs is not evidence of any error or injustice in
the Army's basis for reduction in grade; which was not completing ANCOC.
The Department of Veterans Affairs, operating under its own policies and
regulations, assigns disability ratings as it sees fit.  Any rating action
by that agency does not compel the Army to modify its reason or authority
for separation.

8.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

9.  The available evidence does not support a conclusion that he should be
authorized to retire in the grade of SFC/pay grade E-7.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rtd___  ___sk ___  ___bje __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




                                  ____     Stanley Kelley________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040009089                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/01                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. CHUN                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]