RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 MARCH 2006
      DOCKET NUMBER:   AR20050008000


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Carol Kornhoff                |     |Member               |
|     |Mr. Rowland Heflin                |     |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 his pay grade of E-6 be restored and that
his records be corrected to reflect that he was discharged in the pay grade
of E-6.

2.  The applicant states, in effect, that he was unjustly reduced to the
pay grade of E-5 because he did not complete the conditional requirements
of his promotion which required him to complete the Basic Noncommissioned
Officer Course (BNCOC).  However, he was unable to attend the BNCOC because
of a medical condition that prevented his attendance and should have been
given a waiver of attendance and discharged in the pay grade of E-6.  He
goes on to state that he submitted a request for a waiver and never
received anything.  He further states that it was not until he appeared
before his medical board that he learned that a reduction order had been
published.

3.  The applicant provides a copy of his promotion and reduction orders, a
copy of his request for a waiver of his conditional waiver, a letter from
his commander, copies of his medical profiles, documents retaining him in
service beyond his expiration of term of service, and various electronic
mail (e-mail) messages from Department officials.

CONSIDERATION OF EVIDENCE:

1.  On 1 August 2000, while serving in the United States Army Reserve
(USAR) Active Guard Reserve (AGR) Program in the pay grade of E-5, the
applicant was conditionally promoted to the pay grade of E-6.  His
promotion was conditional on his completing the BNCOC, the required
Noncommissioned Officer Education System (NCOES) course for that grade.

2.  On 5 September 2000, the applicant was placed on a temporary (T-3)
physical profile for low back pain.  He remained under profile restrictions
until his discharge.  His last profile (433113) listed his medical
condition as Lumbar Spondylosis with chronic low back pain, Cervical
Spondylosis with chronic neck pain, and major depressive disorder.

3.  Meanwhile, on 16 January 2001, the applicant was scheduled to attend
the BNCOC for his military occupational specialty (light wheel vehicle
mechanic) at Aberdeen Proving Ground, Maryland, on 25 February 2001.  Those
orders were subsequently revoked on 12 July 2001.

4.  On 7 November 2001, a Notification of Eligibility for Retired Pay at
Age 60 (Twenty Year Letter) was issued to the applicant.

5.  On 18 April 2002, the applicant submitted a request for a waiver of his
conditional promotion due to his being on profile and attending various
medical boards, which prevented him from attending the BNCOC.  The
applicant provided copies of his physical profiles with his request.  The
request was addressed through his commander, who recommended approval, to
the Army Reserve Personnel Command (ARPERSCOM) in St. Louis, Missouri.
There is no evidence in the available records to show that a response to
his request was ever completed.  However, on 19 June 2002, that command
published orders reducing the applicant to the pay grade of E-5, with a
date of rank of 1 September 1993.

6.  On 29 October 2002, orders were published which directed that the
applicant be discharged under the provisions of Army Regulation 635-40, due
to disability with severance pay, effective 9 January 2003, with a 20%
disability rating.

7.  Accordingly, the applicant was honorably discharged in the pay grade of
E-5, effective 9 January 2003.  He had served 16 years, 5 months, and 24
days of total active service and 23 years, 3 months, and 14 days of
creditable service for pay.  He was paid $54,799.20 in disability severance
pay.

8.  A review of the applicant’s records show that at the time he was
promoted to the pay grade of E-6, he was serving as a company motor
sergeant of a tactical Psychological Operations Company in Washington State
that was part of the Special Operations Command.  Additionally, the
applicant has provided e-mail traffic from Department officials which
indicate that they were aware that the applicant was undergoing evaluation
under the Physical Disability Evaluation System (PDES).

9.  Army Regulation 140-158 prescribes the policies and procedures
pertaining to the classification, promotion, reduction and grade
restoration of enlisted Soldiers of the USAR.  Paragraph 7-13 provides, in
pertinent part, that a Soldier who accepts a promotion with the condition
that he or she must enroll in, and successfully complete, a specified NCOES
course and fails to meet those conditions, or is subsequently denied
enrollment, or becomes an academic failure, or does not meet graduation
requirements, or is declared a “No Show”, will be reduced to the grade and
rank held prior to the conditional promotion.

10.  Paragraph 8-3 of that regulation provides that Soldiers serving on AGR
status, who have not completed the required NCOES course for the
appropriate grade prior to entry on active duty, must complete the Active
Army NCOES course.

11.  Paragraph 8-21 of that regulation provides the authorized delays from
NCOES course graduation.  It provides, in pertinent part, that a
conditionally promoted Soldier will be authorized a delay for enrollment in
or completion of a required NCOES course when the Soldier is verified as
being ill or injured to a degree that prevents enrollment or course
completion.

12.  Paragraph 8-23 of that regulation provides that a Soldier
conditionally promoted to a higher grade must complete the required NCOES
course prior to voluntary retirement or prior to reassignment to the
Retired Reserve/voluntary discharge following receipt of official
notification of entitlement to retired pay at age 60 (20-year Letter).
However, if the Soldier is not able to enroll and complete the required
NCOES course for medical or compassionate reasons, a waiver of the NCOES
course requirement must be obtained prior to voluntary retirement,
reassignment to the Retired Reserve, or voluntary discharge, in the grade
in which conditionally promoted.  The waiver must be obtained from the
Human Resources Command – St Louis (HRC-ST. Louis).

DISCUSSION AND CONCLUSIONS:

1.  At the time the applicant submitted his request for a waiver of his
conditional promotion due to medical reasons, he provided a copy of his
permanent profile, which precluded his attendance at the BNCOC.
Additionally, the email traffic that the applicant provided with his
application confirms that Department officials were aware that he was being
evaluated under the PDES.

2.  The applicant was promoted to the pay grade of E-6 on 1 August 2000 and
he continued to perform as a motor sergeant until he was discharged,
despite the fact that he was reduced in grade on 19 June 2002, some 2 years
after he had been promoted and had performed in the pay grade of E-6.

3.  While it is unfortunate that the applicant did not complete the NCOES
requirements for his grade, the evidence suggest that it was through no
fault of his own and that there were regulatory provisions in effect at the
time that allowed for delays in attendance and/or completion in
circumstances such as the applicant’s.

4.  The applicable regulation also had provisions to allow for a waiver of
the conditional promotion provisions in circumstances such as the
applicant’s and the evidence shows that he submitted a request for such a
waiver in a timely manner.  However, there is no evidence to show that any
action on his request was ever taken.

5.  Therefore, given the fact that he performed the duties of a staff
sergeant for a period of 2 years and he took the necessary steps to request
a waiver in a timely manner, it would be in the interest of justice to
restore him to the pay grade of   E-6 effective 1 August 2000, to discharge
him in the pay grade of E-6, and to pay him all back pay and allowances
from that date, to which he is entitled.

BOARD VOTE:

___JM __  ___CK __  ___RH __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for full relief.  As a result, the Board recommends that
all Department of the Army records of the individual concerned be corrected
by promoting him to the pay grade of E-6 effective 1 August 2000, to
discharge him in the pay grade of E-6, and to pay him all back pay and
allowances to which he is entitled from that date.




                                  _______John Meixell_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008000                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20030109                                |
|DISCHARGE AUTHORITY     |AR 635-40, CH 4, PARA 4-24B(3)          |
|DISCHARGE REASON        |DISABILITY SEVERANCE PAY                |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |327/ADM RED                             |
|1.133.0500              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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