RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         3 October 2006
      DOCKET NUMBER:  AR20060012177


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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, reconsideration of his request for
reinstatement of his promotion to sergeant first class/E-7 (SFC/E-7).

2.  The applicant states, in effect, the denial of his request for
reconsideration of his case by the Army Board for Correction of Military
Records (ABCMR) by the Board staff was inappropriate and that he has
submitted two prior claims to the Board for consideration in July 2005 and
again in April 2006.  He claims he has submitted two applications to the
Board within proper guidelines, and he has met all requirements, and the
denial of his reconsideration request by the Board staff only shows a
continued unwillingness to resolve this issue.  He requests that the Board,
and not the Board staff properly review and consider his claim, which is
required by the 14th Amendment to the Constitution, which clearly states
all United States citizens shall be free from all substantial arbitrary
impositions.

3.  The applicant further states that his two applications to the Board,
which were submitted in July 2005 and April 2006, are well-pled factual
allegations and include many statements and supporting documents that
support his position.  He claims to have made repeated declarations to the
Department of the Army (DA), the ABCMR, and the Department of Defense
(DOD), only to be ignored.

4.  The applicant also claims that his reconsideration request is
legitimate and contains factual and new evidence to support his claim.  He
states that for the past 41 months, he has repeatedly tried to have the
March 2003 erroneous reduction brought before a competent and legal panel,
but has come up against an enormous bureaucracy that has deliberately tried
to slow him down or push his claim to the side.  He states that it appears
that there had been an automatic kill switch installed at every level to
ensure this issue is not heard.  He further states that he has been
deliberately placed in an employment discrimination situation.
Institutional discrimination has taken place along with multiple violations
of the United States Code, DOD policy, and Army regulations, which are well
documented in his two ABCMR applications.

5.  The applicant further states that the due process clause specifically
protects our fundamental rights and liberties, which are deeply rooted in
this Nation's history and traditions.  He states that the governing policy
dictates that if new evidence is submitted, the request will be submitted
to the ABCMR for its determination of whether the new evidence is
sufficient to demonstrate material error or injustice.  He claims that in
both of his ABCMR packets, he has without any doubt shown an erroneous
reduction did occur at Fort Eustis, Virginia, in March 2003, and that
nothing has been done about it.
6.  The applicant states that putting both ABCMR packets aside, it should
be very obvious that a senior noncommissioned officer (NCO) with 18 plus
years in the Army should not be reduced in a 4 duty day timeframe.  He
claims the governing regulation will not allow this to take place.  He
further states that in March 2005, he submitted five 400 page reinstatement
packets to the Army Human Resources Command (HRC), and none of the five
packets were even opened.  Subsequently, he submitted a 450 page packet to
the ABCMR and he was told that the evidence presented did not demonstrate
the existence of a probable error or injustice.  He states that when an
SFC/E-7 is reduced in 4 days, an injustice has assuredly occurred.  He
claims he could not continue to send packet after packet to the Board, but
in the end the governing regulation proves his reduction was erroneous.

7.  The applicant contends that under the provisions of the First Amendment
to the United States Constitution, the right to petition for redress of a
grievance is guaranteed.  The Fifth Amendment prevents individuals from
being punished without due process of law.  Due process extends to all
military service members and civilians in the Country, citizen or non-
citizen.  The Eighth Amendment prohibits cruel and unusual punishment.  It
states that no one shall be subjected to cruel, degrading treatment or
punishment.  He states that if a Soldier is punished, it should fit the
crime.  He claims he committed no crime in March 2003, and therefore, he
should not be punished.  He states that no individual should be subjected
to arbitrary, humiliating, or capricious punishment outside the normal
course of the law.

8.  The applicant states that his March 2003 erroneous reduction was an
unusual punishment, and should be considered a life-long punishment.  Even
though there was no physical abuse, his family and he were subjected to a
wide range of emotional abuse and the outright selective application of
Army regulations.  This abuse was reported and ignored.  He states that
violations of the Whistle Blower Protection Act have occurred so many times
that it is not even reported any more because nothing is done about it.  He
states that abuse he has been subjected to is improper and excessive, and
as a Soldier who has served honorably for
22 years, he should not have been subjected to the improper treatment that
he is unable to describe because he questioned his reduction and the
improper actions surrounding it.

9.  The applicant claims that discrimination has been directed toward him
and his family, and this is wrong.  He states that over 200 years ago it
was said that "all men are created equal," but are we?  He states that when
a Soldier sacrifices
22 years of his life or serves his Nation for 22 years, most would agree
that he or she should be entitled to a proper hearing or proper board,
especially with an issue that is as important as his, which he claims is
the irony of this whole event. He states that the laws appear to work
against Soldiers, and not for them, and he and his family want this sad
event to end so they can move on.

10.  The applicant concludes by stating that in 1776 it was written that
"We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their creator with certain unalienable rights, and
among these are life, liberty, and the pursuit of happiness."  He claims
the March 2003 reduction has prevented this from happening in his case, and
he respectfully requests again that he be reinstated to the rank and pay
grade of SFC/E-7, and that he be considered for promotion to master
sergeant/E-8 (MSG/E-8).  He contends that his claim is based on the fact
that he was erroneously reduced in March 2003.

11.  The applicant provides a self-authored statement, and refers to all
documents previously submitted to the ABCMR in support of his application.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20050011756, on 25 October 2005.

2.  During its review of the applicant's case, the Board found that the
applicant was conditionally promoted to SFC/E-7 contingent upon his
completion of the Advance Noncommissioned Officer Course (ANCOC), and was
removed from the promotion list on 17 March 2003, based on his cancellation
from the ANCOC due to his failure to meet Army weight control standards.
The Board finally concluded that the evidence presented did not demonstrate
the existence of a probable error or injustice.

3.  On 14 April 1998, United States Army Personnel Command (PERSCOM), now
known as Human Resources Command (HRC), published Orders Number 104-26,
which authorized the applicant's conditional promotion to SFC/E-7.  These
orders stipulated that Soldiers who received conditional promotions would
have their promotions revoked and their names removed form the promotion
list if they failed to meet the Noncommissioned Officer Education System
(NCOES) requirements.

4.  On 4 March 2003, a Suspension of Favorable Personnel Actions (FLAG) was
imposed on the applicant based on his being placed in the Weight Control
Program based on his exceeding Army weight control standards.

5.  On 17 March 2003, PERSCOM published a memorandum informing the
applicant that he was being removed from the promotion standing list based
on the cancellation of his ANCOC reservation due to his failure to meet
Army weight control standards.

6.  On 17 March 2003, PERSCOM published Orders Number 76-03, which revoked
the applicant's promotion orders.  These orders stated that the applicant
had been administratively removed from the SFC/E-7 promotion standing list,
and that he had been granted defacto status for the period 1 May 1998
through
4 March 2003.

7.  On 23 June 2004, the applicant's unit commander addressed an inquiry
from the applicant regarding his reduction to staff sergeant/E-6 (SSG/E-6).
 The unit commander informed the applicant that he had missed two scheduled
ANCOC courses due to being involved in three motor vehicle accidents, two
of which resulted in his being hospitalized, which precluded his attendance
at the ANCOC. The unit commander further informed the applicant that he was
rescheduled to attend the ANCOC in July 2003, but was unable to attend due
to his failure to meet the Army's weight control standards.

8.  The last Noncommissioned Officer Evaluation Report (NCOER) on file in
the applicant's Official Military Personnel File (OMPF), which covers the
period January through August 2005, contains a statement in Part IVc
(Physical Fitness & Military Bearing) that confirms the applicant has a
medical condition that has resulted in his overweight condition.

9.  On 19 January 2006, the Commanding General (CG), United States Army
Transportation Center and School (USATC&S), Fort Eustis, Virginia,
responded to an Article 138 complaint from the applicant.  He stated that
based on his investigation, he had determined the applicant was erroneously
enrolled in the Army Weight Control Program on 4 March 2003, since he was
not evaluated by health care personnel prior to enrollment, which was
required by regulation.

10.  The USATC&S CG further indicated that although no evidence was found
that indicated the actual weigh-in and subsequent taping were done
incorrectly, the regulation required a health care evaluation prior to
placing a Soldier in the weight control program.  The CG further concluded
that the FLAG action initiated on the applicant was improper, and this
improper action was the basis for the applicant's removal from the
promotion standing list, and the revocation of his conditional promotion to
SFC/E-7.  The CG also indicated that the applicant's chain of command had
also failed to provide him the opportunity to rebut their initiation of his
removal from the promotion list as is required by the governing regulation.


11.  In his 19 January 2006 Memorandum, the CG, USATC&S informed the
applicant that he had ordered the applicant's command to lift the FLAG
action; however, if the applicant still did not meet the Army weight
standard, his command could initiate a new FLAG after fully complying with
the weight control regulation.  He further indicated that the results of
his investigation were being forwarded to the Commander, HRC, along with
his recommendation that HRC restore the applicant's rank.  The CG denied
the applicant's request for an apology from his current chain of command;
however, he stated that he would ensure the applicant's chain of command
made available to him all remedies under Army regulations based on the
prior adverse actions.

12.  Army Regulation 600-9 establishes policies and procedures for the
implementation of the Army Weight Control Program.  Paragraph 21 provides
the procedures to be followed once it has been determined a Soldier is
overweight.  First weight control counseling will be conducted by a health
care professional; the Soldier will be entered into the weight control
program; a FLAG will be initiated; a medical evaluation will be conducted
to determine if an underlying medical condition is the reason the Soldier
is overweight; and the unit is responsible to conduct monthly weigh-ins.

13.  The Army’s ANCOC general attendance policy states, in pertinent part,
that there is no deadline in determining when the Soldier must attend
ANCOC.  However, generally a Soldier is scheduled to attend the ANCOC
within a year after the release of the appropriate SFC/E-7 promotion list.
It further states that Soldiers who fail to satisfy the NCOES requirement
for any reason other than  those that qualify for a deferment are removed
from the centralized promotion list.  This policy also indicates that
Soldiers who feel there was either an error, injustice, or some other type
of wrongdoing that contributed to this status, may request reinstatement
through PERSCOM's NCOES Reinstatement Panel.  If the voting panel finds
irregularities, it can reinstate the Soldier onto the SFC/ANCOC selection
list.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions),
prescribes the policy and procedure for enlisted promotions and reductions.
 The version of the regulation in effect at the time stated, in pertinent
part, that Soldiers whose sequence numbers are reached for promotion to
SFC/E-7 and have not completed or attended ANCOC are promoted conditional
upon their completion of ANCOC.  It further stipulated that Soldiers who
failed to meet this condition as a result of being denied enrollment in
ANCOC, due to failure to meet the Army Weight Control Program standards
defined in Army Regulation 600-9, would have their promotions revoked and
their names removed from the promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record fails to show that HRC took any action based on
the findings and recommendations of the Article 138 investigation completed
on the applicant's case by the CG, Fort Eustis.  The CG, Fort Eustis
determined that the applicant was erroneously enrolled in the Army Weight
Control Program on
4 March 2003 because he was not evaluated by health care personnel as was
required by regulation.  As a result, he concluded that the FLAG action
initiated on the applicant was improper, and that this improper action was
the basis for the applicant's removal from the promotion standing list, and
the revocation of his conditional promotion to SFC/E-7.

2.  The CG, Fort Eustis further indicated that the applicant's chain of
command had also failed to provide him the opportunity to rebut their
initiation of his removal from the promotion list, as is required by the
governing regulation.  Therefore, he recommended the applicant's promotion
be reinstated by HRC.



3.  By regulation, in order to enroll a Soldier in the weight control
program, the Soldier must be counseled by a health care professional and a
medical evaluation must be completed to determine if an underlying medical
condition is the reason the Soldier is overweight.  In this case, as
evidenced by the Article 138 investigation findings, the applicant was
never counseled by health care professionals prior to being enrolled in the
weight control program.  As a result, an erroneous FLAG action was imposed,
which resulted in his ANCOC class being cancelled and his removal from the
promotion list.  In view of these facts, the revocation of the applicant's
conditional promotion and his removal from the promotion standing list was
improper.

4.  In view of the Article 138 investigation and findings, it would be
appropriate to correct the applicant's record by reinstating his
conditional promotion to SFC/E-7, effective 4 March 2003, and by providing
him any back pay and allowances due as a result.  Further, he should be
reinstated on the promotion list and scheduled to attend the next available
ANCOC class.  If the applicant fails to attend his rescheduled ANCOC class
and there is no valid reason to grant a waiver, he will again be processed
for removal from the promotion list in accordance with the governing
regulation, and his conditional promotion will be revoked effective the
date he is disqualified from the ANCOC.  If this is necessary, defacto
status will be granted for the period he held and served as an SFC/E-7.

5.  Given the improper revocation of the applicant's conditional promotion,
and his removal from the promotion standing list, it would be appropriate
and serve the interest of justice to consider his promotion unconditional
and to allow him to retire in the rank and pay grade of SFC/E-7 if he is
eligible and chooses this option prior to attending the ANCOC.

BOARD VOTE:

__KLW__  __TMR  _  __SJS __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant amendment of the ABCMR’s decision in Docket Number AR20050011756,
dated 25 October 2005.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
reinstating his promotion to SFC/E-7, effective 1 May 2000, providing him
any back pay and allowances due as a result of the reinstatement of this
promotion; reinstating him on the ANCOC list; and scheduling him for
attendance at the next available ANCOC class.

2.  If the individual concerned is eligible and elects to request voluntary
retirement prior to attending the ANCOC, as an exception to policy, his
record should be corrected to show his promotion to SFC/E-7 was
unconditional, and he should be allowed to retire in that rank and pay
grade if all other satisfactory service requirements in that rank and pay
grade are satisfied.




                                  _____Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012177                           |
|SUFFIX                  |                                        |
|RECON                   |AR20050011756 / 2005/10/25              |
|DATE BOARDED            |2006/10/03                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT PLUS                              |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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