RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 MARCH 2007
	DOCKET NUMBER:  AR20060012408 


	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.  



	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 reinstatement to the pay grade of E-7 with the appropriate date of rank and all back pay and allowances.  He further requests that he be allowed to retire in the grade of E-7.

2.  The applicant states, in effect, that he was illegally prevented from attending the Advanced Noncommissioned Officers Course (ANCOC) resulting in an illegal reduction in rank.  He explains that during the second quarter of 2000 while performing duties in Naples, Italy, he was medically diagnosed as overweight due to an underlying or associated disease process.  He maintains that as long as his medical condition was not service disqualifying, he was eligible to attend military schooling, and receive promotions and awards.  The applicant states that his command did not enter him into a weight control program nor was he flagged. 

3.  On 1 September 2001, the applicant states that he was promoted to the rank of sergeant first class.  However, on 29 August 2002, he was prevented from attending the ANCOC and subsequently flagged and reduced in rank.  He argues that his command did not agree with the diagnosis of the medical authorities that his overweight condition was due to an underlying or associated disease. 

4.  The applicant provides his self-authored statement, a copy of a 3rd Endorsement, a photo, Noncommissioned Officer Evaluation Reports (NCOER),  excerpts from Army Regulations 600-9, 40-501 and 350-1, DA Form 4856 (Developmental Counseling Form), orders, three copies of memoranda, and 
self-authored "Cover Sheets" explaining each document provided. 

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty in July 1987 and has served continuously since that date.  He executed an indefinite reenlistment contract in October 1999.

2.  On 30 August 2001 orders were issued by the then United States Total Army Personnel Command (PERSCOM) promoting the applicant to pay grade E-7 effective 1 September 2001.  The order noted that the promotion was conditional for those Soldiers who had not yet completed ANCOC.  It also indicated that those Soldiers who were promoted conditionally would have the promotion revoked and their names removed from the centralized promotion list if they failed to meet the ANCOC education requirement.


3.  On 29 August 2002 the applicant was counseled by the 650th Military Intelligence Group Sergeant Major concerning his scheduled attendance at ANCOC beginning on 9 September 2002.  The sergeant major stated that the applicant weighed 206.5 pounds which exceeded the Army screening weight of 200 pounds.  The applicant failed the body fat percentage standards in accordance with AR 600-9.  He was taped and found to have 26.10 percent body fat and his maximum authorized body fat percentage was 24 percent.  The sergeant major informed the applicant that he would not be allowed to attend ANCOC due to his failure to meet the standards of AR 600-9 and would subsequently be demoted to the grade of E-6 based upon his conditional promotion.  The sergeant major said that the Navy doctor diagnosed the applicant with degenerative arthritis and shoulder injury, and the doctor opined that the arthritis and injury prevented the applicant from being incompliance with AR 600-9.  The sergeant major stated that he did not believe that the doctor’s prognosis was reasonable in keeping the spirit and the letter of AR 600-9 and AR 40-501.  

4.  The applicant initialed the block indicating that he agreed with the sergeant major’s counseling and signed the counseling statement on 29 August 2002.  In his “cover sheet” provided with his application, he said that the counseling statement rendered by the sergeant major reflects the sergeant major's disagreement with the medical prognosis and his (sergeant major) faulty interpretation of AR 600-9.  The applicant maintains that his signature on the counseling statement does not constitute his agreement or disagreement with the information on the form.

5.  On 25 September 2002 a memorandum from PERSCOM informed the applicant that his name was administratively removed from the promotion list based on his cancellation from ANCOC due to the applicant’s failure to meet the standards of AR 600-9.  Army Regulation 600-9 provides guidelines on the Army’s Weight Control Program.

6.  The applicant’s September 2001 promotion order to pay grade E-7 was revoked on 25 September 2002.  

7.  The applicant’s NCOER from the period July 2000 to June 2001 lists the following:  "Profile/0103, height/weight 72/232 No."  The statement of "doctor evaluated weight as medical disorder, not enrolled in weight control program yet" is listed in Part IVc to explain the No entry which indicates that the applicant was not incompliance with the Army Weight Control Standards.  The applicant stated in his "cover sheet" that the portion concerning "not enrolled in the weight control program yet" was added at a later date without his or his senior rater’s knowledge.

8.  The applicant’s NCOER from the period July 2001 to June 2002 lists the following:  "Pass/0203, height/weight 72/214 No."  The statement "doctor evaluated; noncompliance with AR 600-9 due to medical disorder" is listed in Part IVc to explain the “No” entry.

9.  The applicant’s NCOER from the period July 2002 to June 2003 lists the following:  "Pass/0306, height/weight 72/230 No."  The statement "Soldier did not show progress in meeting Army weight or body fat percentage standards" is listed in Part IVc to explain the “No” entry.

10.  The applicant’s NCOER from the period July 2003 to June 2004 lists the following:  "Pass/0404, height/weight 72/230 No."  The statement "noncompliance with AR 600-9 due to medical disorder; Soldier has shown progress in meeting Army weight or body fat standards" is listed in Part IVc to explain the “No” entry.

11.  The 3rd endorsement subject:  Weight Control Program provided by the applicant stated that he was examined and found to be "unfit" for participation in a Weight Control/Physical Exercise Program.  The cause of the overweight condition was due to a medical condition.  The medical doctor stated that the applicant suffered from osteoarthritis, a chronic degenerative condition.  The only treatments were palliative and the applicant’s long term prognosis did not include a recovery of functions.  The doctor recommended restriction from physical exercise and consideration of a medical board.  The endorsement is undated.  However, the applicant stated in his "cover sheet" that the endorsement was completed the second quarter of 2000 in Naples, Italy. 

12.  A memorandum dated 23 April 2004 shows that the applicant was examined and found to be fit for participation in a Weight Control/Physical Exercise Program.  The applicant’s overweight condition was found to be due to a medical condition.  The health care personnel stated that the applicant has arthritis that would continue to interfere with exercise.  He had been evaluated by two medical boards and returned to duty.  The health care personnel recommended that the applicant continue to diet and perform moderate exercise to maintain weight.  The health care personnel stated that the applicant should be excused from height and weight standards.

13.  The applicant did not provide evidence to show, and his records do not indicate that his medical condition required processing through a Medical Evaluation Board (MEBD).  

14.  Army Regulation 600-9 (Army Weight Control Program) states, in pertinent part, that health care personnel will perform a medical evaluation when a Soldier has a medical limitation, is pregnant, or when requested by the unit commander. The medical professional will conduct a thorough medical evaluation to rule out any underlying medical condition that may be a cause for significant weight gain. If an underlying medical condition cannot be controlled with medication or other medical treatment, the medical professional will refer the Soldier to a Medical Evaluation Board (MEBD).  Additionally, a profile associated with the underlying diagnosis will be prepared.  However, a temporary or permanent profile will not be granted to exempt Soldiers from the requirement to meet body fat standards; therefore, such profiles will be deemed invalid. 

15.  Army Regulation 40-501 (Standards of Medical Fitness) states that a physical profile (DA Form 3349) will not be used to excuse Soldiers from the provision of AR 600-9.  The inability to perform all Army Physical Fitness Test events or the use of certain medications is not generally considered sufficient medical rationale to exempt a Soldier from AR 600-9.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policy for enlisted promotions.  The regulation states that commanders must submit a copy of the flag and recommendation for removal on a Soldier who has not met the weight requirements within the time prescribed in AR 600-9, provided no underlying or associated disease is found to be the cause of the overweight condition. 

17.  The same regulation provided, at the time, 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 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.  

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. 

19.  Further, the NCOES policy indicates that Soldiers who fail to attend a course or denied enrollment, who feels there was an error, injustice or some other type of wrong doing 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.

20.  In the processing of this case an advisory opinion was obtained from the Chief, Specialized Training Management Branch, PERSCOM, now the U.S. Army Human Resources Command (HRC).  The Chief, Specialized Training Management Branch, recommended disapproval of the applicant’s request and stated that the applicant was scheduled to attend ANCOC Class 503, from          9 September 2002 to 11 November 2002 which was canceled due to him being flagged.  Army Regulation 600-8-2 prohibits Soldiers who are flagged form attendance at military schools.

21.  The advisory opinion was forwarded to the applicant on 16 October 2006, but he failed to respond.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that prior to the applicant attending ANCOC in September 2002 he was found to be "not in compliance with AR 600-9."  Therefore, he was denied attendance at ANCOC and subsequently demoted to the grade of E-6.  

2.  Human Resources Command administratively removed the applicant’s name from the promotion list due to his inability to attend ANCOC because he was overweight.  

3.  The medical evidence the applicant provided that indicates his overweight condition was due to an underlying medical condition is dated April 2004, 
17 months after his removal from attendance at ANCOC.  The applicant has failed to provide sufficient evidence to prove that at the time he was determined to be overweight; his condition was due to an underlying or associated disease.  Therefore, there is an insufficient basis to approve his request.
4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LE___  ___LB __  ___MF __  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.





_____  Lester Echols________
          CHAIRPERSON




INDEX

CASE ID
AR20060012408
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
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.
131.00
2.

3.

4.

5.

6.