RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20070005233


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 the record of nonjudicial
punishment (NJP) be removed from her Official Military Personnel File
(OMPF) and she be reinstated to the grade of Sergeant First Class (SFC).

2.  The applicant states, in effect, that she did not have effective
counsel when the NJP was imposed and appealed.  The applicant further
states, in effect, that the commander handled her case improperly and
failed to use the guidelines in accordance to Army regulations, which
resulted in her reduction to the grade of staff sergeant (SSG).

3.  The applicant provides two copies of DA Form 268 (Report to Suspend
Favorable Personnel Actions (FLAG), a copy of her promotion orders, a copy
of her reduction orders, a copy of a memorandum subject:  removal from the
promotion selection list, a copy of the DA Form 2627 (Record of Proceedings
Under Article 15, UCMJ).

CONSIDERATION OF EVIDENCE:

1.  The applicant is a SSG (E-6) on active duty currently assigned to the
73d Transportation Company, Fort Eustis, Virginia, performing duties in
Military Occupational Specialty (MOS) 88L (Assistant Marine Engineer).  The
applicant’s military personnel records show that she entered active duty on
13 April 1990 and trained in MOS 88L (Watercraft Engineer).

2.  Orders Number 283-17, U.S. Total Army Personnel Command, Alexandria,
Virginia, dated 10 October 2002, conditionally promoted the applicant to
the grade of rank of Sergeant First Class with a date of rank and effective
date of
1 November 2002 and an effective date of 1 November 2002.  The additional
instructions of these orders included a statement that indicated that
Soldiers accepting a conditional promotion who are subsequently denied
enrollment, declared a “No Show”, become an academic failure or otherwise
do not meet the Noncommissioned Officer Education System (NCOES) course
completion requirement will be reduced to the grade and rank held prior to
the conditional promotion.

3.  On 20 June 2003, a Flag (Report to Suspend Favorable Actions) was
initiated against the applicant on 18 June 2003, for adverse action.

4.  On 11 September 2003, the applicant accepted NJP under Article 15,
Uniform Code of Military Justice for wrongfully using cocaine, a controlled
substance.  Her punishment was forfeiture of $1,533.00 pay for two months.
The commander imposing the NJP directed that it be filed in the restricted
fiche of the OMPF.

5.  U.S. Army Human Resources Command, Alexandria, Virginia, subject:
Administrative Removal from the Promotion Selection List, dated 4 November
2003, removed the applicant from the 22 August 2002, Sergeant First Class
Selection List based on her cancellation from Advanced Noncommissioned
Officer (ANCOC) NCOES course due to her own misconduct.

6.  Orders Number 308-11, U.S. Human Resources Command, Alexandria,
Virginia, dated 4 November 2003, reduced the applicant to the grade of rank
of Staff Sergeant with a date of rank of 1 August 1998 and an effective
date of
5 September 2005.

7.  On 17 April 2006, the Flag was closed favorably.

8.  Army Regulation 27-10 (Military Justice) provides policy for the
administration of military justice.  Chapter 3 provides that NJP is
appropriate in all cases involving minor offenses in which non-punitive
measures are considered inadequate or inappropriate.  It is a tool
available to commanders to correct, educate and reform offenders whom the
commander determines cannot benefit from less stringent measures; to
preserve a member's record of service from unnecessary stigma by record of
court-martial conviction; and to further military efficiency by disposing
of minor offenses in a manner requiring fewer resources than trial by court-
martial.  It also provides that the officer imposing NJP determines whether
the report of NJP (DA Form 2627) is to be filed in the Soldier’s restricted
or performance fiche.

9.  Army Regulation 600-8-104 (Military Personnel Information
Management/Records) establishes the responsibilities, policies, and
procedures for maintaining and controlling the OMPF.  This regulation
states, in pertinent part, that the restricted fiche is the OMPF section
for historical data that may normally be improper for viewing by selection
boards or career managers.  The restricted fiche ensures that an unbroken,
historical record of a member's service, conduct, duty performance,
evaluation periods, and corrections to other parts of the OMPF is
maintained.  It is intended to protect the interests of the member and the
Army.

10.  Army Regulation 600-8-19, in effect at that time, prescribes the
policy for enlistment promotions.  It provides for the conditional
promotion of soldiers whose sequence numbers are reached for promotion to
SFC/E-7 and who have not completed or attended the ANCOC.  These soldiers
are promoted conditional upon their completion of ANCOC.  It furthers
provides that soldiers who fail to attend their scheduled ANCOC class for
an unjustified reason will be reduced and/or removed from the promotion
selection list.

11.  The Army’s ANCOC general attendance policy outlined by the PERSCOM
NCOES branch states, in pertinent part, there is currently 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.  The deferment policy outlined
indicates that requests for deferments may be considered for medical or
compassionate reasons.  It further states that soldiers who fail to attend
their scheduled ANCOC class for any reason other those that qualify for a
deferment, and who are subsequently declared a "no-show" are removed from
the centralized promotion list.  Further, the NCOES policy indicates that
soldiers declared a no-show, 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.

12.  Army Regulation 600-8-2 prescribes the policies governing the
suspension of favorable personnel actions.  This regulation specifies that
a flag prohibits Soldiers from attending civil or military schools.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the NJP she received should be
removed from her military service records because she was not guilty of
using illegal drugs and the her rank should be restored to sergeant first
class (E-7) has been considered and found to have no merit.

2.  The NJP was imposed in compliance with applicable laws, regulations and
policies.  The punishment imposed was neither unjust nor disproportionate
to the offense, and there is no evidence of any substantive violation of
any of the applicant's rights.

3.  The record of NJP is filed in accordance with the applicable Army
regulation.  It is noted that the applicant’s commander ordered the record
of NJP filed in the restrictive section of the applicant’s OMPF.

4.  Evidence shows that the applicant’s records were flagged effective 18
June 2003 through 14 April 2006.  Applicable Army regulation forbids
attendance to ANCOC while under suspension of favorable actions.
5.  Applicable regulation shows that completion of NCOES is mandatory for
promotion to sergeant first class and that failure to complete this
requirement will result in reduction and removal from the promotion list.

6.  Evidence shows the applicant was selected for a conditional promotion
for the grade of sergeant first class.  Evidence shows she was
administratively reduced to the grade of staff sergeant for misconduct and
therefore, unable to attend ANCOC.  As a result, the applicant's promotion
to the grade of sergeant first class was revoked in accordance with the
applicable regulation.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM            LMD_____GJP ___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.




                                        ___Yolanda Maldonado__
                                                CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20070005233                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/15                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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