RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070011829 


	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 following members, a quorum, were present:













	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 he be provided an APFT (Army Physical Fitness Test) waiver for the required SOAC (Signal Officer Advance Course) completed on 10 March 2006 and that he be promoted to major (MAJ/O-4) effective 31 October 2006, with back pay and allowances.

2.  The applicant states, in effect, that on 10 March 2006, he completed the course requirements for the Army SOAC.  Academically, he passed all the examinations that were required for a course completion certificate.  However, he did not pass the course due to his inability to pass the APFT at that time.  He was not afforded the opportunity to retake the course as it no longer existed.  He was selected for promotion to major but he must have completed the SOAC by October 2007, after which he would be discharged.  He states the Army issued directives allowing the APFT to be waived for Soldiers returning from the theater within 30 days.  He had been back from the theater 60 days at the time of the course.  

3.  The applicant states, in effect, that on August 2006, the Army issued a directive waiving the APFT for all Soldiers who did not meet the height/weight and APFT requirements at the time of taking military courses.  He has the unfortunate circumstance of not being in the course when those waivers were in effect.  The SOAC was reorganized as the Captain’s Career Course and is recommended to be taken as a series of correspondence courses and two resident phases over 3 years.  He had until December 2007 to complete the military education requirement, advanced course for promotion to major. 

4.  The applicant provides several documents from his OMPF (Official Military Personnel File) and a chronological narrative of his problems and attempts to correct his problems in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was appointed in the New Jersey Army National Guard (NJARNG) as a second lieutenant, effective 27 January 1993, with prior enlisted service.  

2.  The applicant was promoted to captain (CPT/O-3) effective 1 November 1999. 

3.  The applicant was ordered to active duty on 16 May 2004 in support of Operation Iraqi Freedom (OIF).

4.  On 5 February 2005, the Headquarters, NJARNG, notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

5.  The applicant passed the APFT in May 2005.

6.  On 23 August 2005, the applicant completed Phase I of the RC (Reserve Component) SOAC.

7.  On 24 January 2006, the applicant was released from active duty and was transferred to a troop program unit (TPU), in the rank of captain.

8.  On 7 March 2006, the applicant requested an education exception for the March 2006 MAJ Promotion Board.  

9.  On 10 March 2006, the applicant failed the APFT.

10.  The applicant completed the SOAC academically in March 2006 but failed the APFT. 

11.  On 28 March 2006, the applicant requested a waiver for academic requirements for the major promotion board. 

12.  The applicant was considered and selected for promotion to major by the 2006 Reserve Component Selection Board with an effective date and date of rank of 31 October 2006.  He received an exception to military education requirement for promotion consideration purposes.  He was informed that his military education requirements must be completed no later than 7 December 2007.  

13.  The applicant was ordered to active duty on 24 July 2006 in support of Operation Noble Eagle, for 179 days.  

14.  On 10 August 2006, the Deputy Chief of Staff, G-3/5/7, published a memorandum, Subject:  Physical Fitness and Height and Weight Requirements for Military Institutional Training.  The G3 stated, in pertinent part, that current training policy prevented Soldiers who failed to meet the standards of the Army Weight Control Program and/or failed to pass APFT from completing institutional education and training.  Soldiers and leaders required education and training on  critical tasks in order to perform effectively in combat.  Therefore, effective immediately, the following changes were approved for Army Regulation 350-1.

15.  Soldiers attending institutional training courses are still expected to meet the height and weight standards in accordance with (IAW) Army Regulation 600-9 and the physical fitness standards of Army Regulation 350-1.  Soldiers attending institutional training courses, in either a PCS (Permanent Change of Station)or TDY (Temporary) status, will be administered the APFT and screened for compliance with Army Regulation 600-9 standards.  Soldiers who meet academic course requirements, but fail APFT standards will be considered an academic course graduate and receive a DA Form 1059 with item 13,c, marked, "Marginally achieved standards," and item 16 containing the statement, "13.c:  Soldier met academic requirements, but failed to meet APFT standards IAW AR 350-1 during the course."  The DA Form 1059 along with the Soldier's diploma will be held at the institution until the Soldier's O5 level commander verifies the Army standard is met.  The Soldier's command will then submit to the proponent school, supporting documents for meeting APFT standards, at which time the school will issue the Soldier's DA Form 1059 as stated above and diploma.
Unit commanders will have three months from course graduation date to ensure the Soldier has corrected the deficiencies.  If a Soldier fails to meet standards at the end of three months, comments in the DA Form 1059, block 16, will make note of repetitive failure to meet standards.

16.  On 11 November 2006, the applicant passed the APFT and contacted the Signal Academy, at Fort Gordon, Georgia, to see if the 10 August 2006, memorandum, applied to him.  He was informed by email that it did not apply to him because it was not retroactive to the date when he attended school.

17.  On 11 December 2006, the applicant contacted G3 to see if the memorandum was retroactive.  He was informed that it was not and that there was nothing that they could do for him.  

18.  On 12 June 2007, the applicant met with the JAG (Judge Advocate General) at Fort Myer and was advised to apply to this Board for relief.

19.  In an advisory opinion, dated 28 December 2007, the Chief, Personnel Division, National Guard Bureau, recommended disapproval of the applicant’s request, because the Department of the Army memorandum from the Office of the Deputy Chief of Staff, G3, dated 10 August 2006, paragraph 2, stated the policy was effective immediately [effective immediately was on 10 August 2006].  Therefore, the applicant was not covered under this rule because the memorandum was not retroactive.

20.  The opinion was forwarded to the applicant for his acknowledgement on 3 January 2008.  He was provided 15 days to respond; however, he did not respond.

21.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve and Army National Guard officers.  The regulation provides that mandatory selection boards will be convened each year to consider Reserve Components officers in an active status for promotion to captain through lieutenant colonel.  The regulation provides that in order to be qualified for promotion to major an individual must have completed 7 years of time in grade as a captain and an OAC on or before the convening date of the respective promotion board.  There are no waiver provisions provided in the regulation.

22.  Army Regulation 135-155 also specified that an officer recommended for promotion will not be promoted prior to meeting the promotion eligibility criteria, i.e., passing the APFT and met the standards of Army Weight Control Program (Army Regulation 600-9).  Paragraph 4-12 also specified that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  An officer must also possess a current APFT and possess a current date for maximum allowable weight for height and weight standards.  Promotion authorities will ensure that the officer possesses a current physical examination, a favorable security screening, and possess current APFT and maximum allowable weight for height and weight standards before announcing a promotion.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the promotion effective date and date of rank will not be earlier than the later date all qualifications are met.  

23.  Army Regulation 600-9 (The Army Physical Fitness and Army Weight Control Program), in effect at that time, established policies and procedures governing physical fitness, weight control, and military appearance as it related to body weight. 
This regulation provided commanders, at all levels, with instructions and guidance for the implementation of the Army Physical Fitness and Weight Control Program and established standards of physical fitness and body weight for all Soldiers of the Active Army, the Army National Guard, and the Army Reserve.  

24.  A HQDA Message with a Date/Time Group of 292039Z January 1999, subject:  Policy Change to Institutional Army Physical Fitness Testing announced the approval of a policy change pertaining to the APFT at Institutional Training Courses.  This policy mandated that all Soldiers attending Institutional Training Courses would take the APFT within 72 hours of enrollment.  If the Soldiers failed the initial APFT, the Soldiers would be provided one retest 7 to 14 days after failure of the initial APFT.  If the Soldiers failed the retest, the Soldiers would receive an academic dismissal for failure to meet APFT standards.  Soldiers attending other professionals development courses in either a PCS (Permanent Change of Station) or TDY (Temporary Duty) status, i.e., such as SOAC and other resident courses 8 weeks or longer are still under this policy which required the Soldiers to take and pass the APFT in order to graduate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed SOAC in March 2006 but failed the APFT.  He was required to complete the SOAC, pass the APFT, and meet the height and weight standards according to regulation.  

2.  The applicant was selected for promotion to major by the 2006 RCSB with an effective date and DOR of 31 October 2006.  He was informed that military education requirements must be completed no later than 7 December 2007. 

3.  The applicant, a TPU officer, was required to meet all promotion qualifications, such as height and weight standards and physical fitness standards.  The memorandum, prepared by G3, stated that Soldiers attending institutional training courses were still expected to meet the height, weight, and physical fitness standards of Army Regulation 350-1 and failing to meet those standards would result in removal from the course.

4.  The applicant was informed that the memorandum was not retroactive to the date when he attended school.  The new policy was not retroactive prior to its effective date of 10 August 2006.

5.  Prior standards, in effect at that time, under the HQDA Message dated 29 January 1999, required the applicant to take and pass the APFT in order to graduate.

6.  In view of the circumstances in this case, the applicant is not entitled to an APFT waiver for the SOAC in order to be promoted to major with an effective date of 31 October 2006.  He has not shown error, injustice, or inequity for the relief he now requests.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ___x__  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.




      _________x_____________
                CHAIRPERSON




INDEX

CASE ID
AR20070011829
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080429
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR ARNG. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

ABCMR Record of Proceedings (cont)                                         AR20070011829



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508