RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 November 2004
      DOCKET NUMBER:  AR2004100686


      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. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Hubert O. Fry, Jr.            |     |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 that he be restored to sergeant first class
(SFC) (E-7).

2.  The applicant states, in effect, that his promotion to SFC was revoked
due to medical problems and delays in the issuance of profiles, which
resulted in his failing the annual physical fitness test (APFT).  He states
that he successfully passed fitness tests when on the proper profile and
doing the modified testing.  He states that the removal from the promotion
list was unjust and that the difference in his pay has been recouped.

3.  The applicant provides copies of the notification of reduction, 55
pages from his medical records, two 2001 Noncommissioned Officer Evaluation
Reports (NCOER), and four award certificates.

CONSIDERATION OF EVIDENCE:

1. The applicant entered active duty on 18 May 1984 and was promoted to
staff sergeant (SSG) on 1 January 1994.

2.  The medical records provided by the applicant indicate that he injured
his back, in the line of duty, on 10 March 1992.

3.  The applicant was selected for promotion to sergeant first class (SFC)
by the 1998 selection board.  He was conditionally promoted to sergeant
first class (SFC), pay grade E-7, effective 1 December 1998, contingent
upon successful completion of Advanced Noncommissioned Officers Course
(ANCOC).

4.  On 16 July 2001, the applicant was notified that his name had been
removed from the promotion list due to his failure of the APFT and
cancellation of ANCOC attendance.

5.  In October 1998, the applicant suffered an injury to his left ankle
which required surgical intervention.  The surgery was postponed due to
reassignment.

6.  On 20 August 1999, the applicant received a temporary profile due the
surgery which precluded running and marching.

7.  The applicant underwent surgery on his ankle on 27 July 2000 with a 6-
month rehabilitation period.  The applicant was placed on a profile (L3)
for the period 28 July 2000 through 28 October 2000 with limitations of no
running, jumping, or marching.
8.  A 13 March 2001 DA Form 4856 (Developmental Counseling Form) indicates
that the applicant was notified that he was to be given an APFT on 23 March
2001.  The reasons given were that the applicant had not had an APFT for
over a year and to determine his physical fitness for attendance at ANCOC.
The applicant disagreed with the date of the APFT and it was postponed
until 23 April 2001.

9.  On 26 April 2001, a Report to Suspend Favorable Action (FLAG) was
commenced due to his failure of an APFT.

10.  Due to the FLAG, his attendance at ANCOC was cancelled.

11.  The first available medical report referencing a back problem, other
than the original injury, is dated 18 May 2001.  The applicant reported
back pain since "Monday" after performing PT.

12.  On 20 June 2001, he was diagnosed with Grade I spondylolisthesis
(abnormal curvature of the spine) at L5-S1 and mild degenerative changes in
the lower thoracic spine.

13.  In a 7 June 2001 follow-up statement on the counseling form, the
applicant indicated he had hurt his back after completing 30 sit-ups.

14.  During a 10 July 2001 follow-up medical treatment, it was recommended
that the applicant be placed on a P-2 profile with a restriction of no sit-
ups.  This is the first indication that the applicant was placed on a
profile for his back condition.

15.  The applicant passed a 6 July and 19 July 2001 diagnostic APFT with a
profile of no sit-ups or running.

16.  In a second statement, he indicated that, in October 2001, after
receiving a P2 profile (no sit-ups) that he passed a record APFT.

17.  A 16 October 2002 medical examination indicates a worsening of the
applicant's back condition with spondylolisthesis at L5/S1 and disc
desiccation at L-3/L4 and L5/S1.

18.  The medical records show that the applicant underwent a fusion of the
L5/S1 joint on 23 January 2003.

19.  In a 27 June 2003 surgical follow-up report, the applicant's attending
physician offered the opinion that the applicant's back condition had its
onset with the injury recorded in 1992 and that the condition was
exacerbated during the April 2001 APFT.

20.  The applicant's Noncommissioned Officers Evaluations Reports (NCOERs),
for the reporting periods between December 1998 and April 2004, indicate
that he successfully performed duties as a sergeant first class (SFC) and
was recommended for immediate attendance at ANCOC.

21.  Subsequent to the applicant requesting Board action, he submitted a
request for retirement, which was approved.  He was placed on transitional
leave until 30 September 2004 when he was transferred to the Retired
Reserve.

22.  Army Regulation 600-8-19 (Enlisted Promotions), paragraph 1-17
(Erroneous promotions and de facto status), provides that:

      a. Instruments announcing erroneous promotions will be revoked. When a
      soldier has been erroneously promoted, and has received pay at the
      higher grade, a determination of de facto status may be made only to
      allow the soldier to keep any pay and allowances received at the
      higher grade.


      b. De facto status may be granted by the promotion authority or higher
      commander after legal review by the servicing Staff Judge Advocate's
      office. In determining whether a soldier is entitled to de facto
      status, a factual evaluation must be made to determine whether:


            (1) A DA Form 4187 or promotion order has been issued;


            (2) Soldier occupied the higher grade in good faith;


            (3) Soldier actually discharged the functions of the higher
      grade; and


            (4) There is no absolute statutory bar to his or her receipt of
      the pay at the higher grade.

23.  Army Regulation 600-8-19 paragraph 1-27 provides the Noncommissioned
Officers Education System requirements in the following subparagraphs:

      a.  Effective 1 October 1993, the Army linked Noncommissioned Officer
      Education System (NCOES) to promotion to staff sergeant (SSG),
      sergeant first class (SFC), and sergeant major (SGM).  Linking the
      NCOES to promotion ensures noncommissioned officers (NCOs) possess the
      appropriate skills and knowledge required prior to assuming the duties
      and responsibilities of the next higher grade.


      b.  NCOES requirements for promotion. Soldier must be —


            (1)  PLDC [Primary Leadership Development Course] graduate or
      equivalent for promotion to SGT.


            (2)  BNCOC [Basic Noncommissioned Officer Course] graduate for
      promotion to SSG.


            (3)  ANCOC [Advanced Noncommissioned Officer Course] graduate
      for promotion to SFC.


            (4)  USASMC [United States Army Sergeant Major Course] graduate
      for promotion to SGM.


      c.  Conditional promotions.


            (1)  Soldiers selected for promotion to SSG, SFC and SGM will be
      conditionally promoted.  Conditional promotion to SGT requires
      promotion authority approval.


           (2)  Conditional promotion to SGT through SFC will be for a
      period not to exceed 12 months.  Soldiers enrolled in their
      appropriate NCOES course at the end of the 12-month timeframe will be
      allowed to complete the training and retain their promoted grade upon
      graduation.  Exceptions to extend soldiers beyond the 12-month limit
      must be submitted by the promotion authority to Commander, HRC [Human
      Resources Command]-Alexandria (AHRC-MSP-E), 200 Stovall Street,
      Alexandria, VA 22332-0443.


           (3)  Soldiers who fail to successfully complete, fail to remain
      eligible to be scheduled for or attend, who are denied enrollment in,
      or who do not attend their scheduled NCOES class (through fault of the
      soldier) will be administratively reduced and/or removed from the
      promotion list.  The effective date of administrative reduction is the
      date of the action that caused the soldier to be ineligible to retain
      the promotion.  The DOR will be the previous DOR held at the reduced
      grade. These soldiers must re-compete for promotion.


           (4)  Soldiers who have been reduced or removed from the promotion
      list as a result of failure to meet the NCOES requirement are
      ineligible for a future conditional promotion to the same grade.


           (5)  For conditionally promoted soldiers the following statement
      will be entered on the promotion instrument: "Soldier has not met the
      NCOES requirement and is promoted conditionally.  If the soldier fails
      to successfully complete, fails to remain eligible for, is denied
      enrollment in, or does not attend his/her scheduled NCOES class
      (through fault of the soldier), then the soldier will be
      administratively reduced and must re-compete for promotion.  Soldiers
      promoted to SGT through SFC have 12 months to meet this requirement."

DISCUSSION AND CONCLUSIONS:

1.  The applicant, due to his surgery for his ankle and then back
condition, was in a conditional promotion status for over 3 1/2 years prior
to his removal from the promotion list.

2.  His medical problems and surgery prevented him from attending ANCOC
within 12 months of his conditional promotion.  In accordance with
regulations, the applicant should have been removed from the promotion list
in December 1999.

3.  Further, since the applicant was not placed on a profile for his back
until after he failed the April APFT, he was properly considered to have
failed that test.  Since attendance at ANCOC requires successful passing of
the APFT, the cancellation of his attendance at ANCOC was proper and his
removal from the promotion list mandatory.

4.  Therefore, restoration to the 1998 SFC promotion list is not warranted.

5.  However, the fact that the applicant remained in a conditional status
beyond the 12-month limit, successfully served in capacity of a SFC for
over 3 1/2 years, and, through no fault of his own, was unable to attend
the required training course he should not be penalized for serving in this
capacity.

6.  Therefore, it is appropriate to grant the applicant defacto status as a
SFC for the period from his official effective date of rank, 1 December
1998, through the date of his official removal from the promotion list, 16
July 2001.

7.  Restoration of any monies recouped for this period should be returned
to the applicant.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__JCH___  __LE ___  __HOF__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by granting the individual concerned defacto status
as a sergeant first class for the period he served in this capacity with
full entitlement to pay and allowances.

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
reinstating him on the 1998 SFC promotion list and to pay grade E-7.





                                  _        James C. Hise_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100686                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041118                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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