RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2008
      DOCKET NUMBER:  AR20080001837


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 earlier
petition to reinstate his rank to sergeant first class (SFC).

2.  The applicant states, in effect, he was unjustly removed from the SFC
promotion list because he was not informed in writing or given the
opportunity to rebut the removal as is required by regulation.  He states
that the medical evaluation completed on him at the time tested only for
diabetes and hyperthyroidism, and did not evaluate other conditions that
cause weight gain.  He states that once he was diagnosed with Obstructive
Sleep Apnea (OSA), he was not allowed to appeal the removal as authorized
by the governing regulation. He claims three reinstatement packets were
unjustly held up at the brigade level.

3.  The applicant provides the following documents in support of his
reconsideration request:  United States Army Human Resources Command (HRC)
Administrative Removal from the Promotion Standing List Memorandum, dated
14 July 2003; Promotion Revocation Orders, dated 14 July 2003; Request for
Reinstatement Memorandum, dated 21 November 2007; Chain of Command
Memoranda Supporting Reinstatement on the Promotion List, dated
2 November 2004, 10 November 2004, 14 November 2007, 5 November 2007 (2),
and 10 November 2007; Doctor's Statement, dated 21 January 2004; Brigade
Surgeon Statement, dated 1 October 2004; Doctor's Statement, dated
9 January 2004; United States Army Physical Disability Agency (USAPDA)
Memorandum, dated 21 June 2004; American Sleep Apnea Association Brochure;
OSA Medical Treatment Records; Body Fat Content Worksheets, dated between
17 June 2003 and 27 September 2004; Army Physical Fitness Test (APFT)
Scorecards, dated 15 June 2002 and 2 November 2007; Recommendation for
Award (DA Form 638), dated 10 August 2004; Noncommissioned Officer
Evaluation Reports (NCOERs) for periods ending in January 2007, May 2006,
and May 2005.

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
AR20060006314, on 31 October 2006.

2.  During its original review of the case, the Board found the revocation
of the applicant's promotion to SFC and his removal from the promotion
standing list were accomplished in accordance with the governing
regulation.  It further determined the applicant had not satisfied the
Noncommissioned Officer Education System (NCOES) requirements of his
conditional promotion, and as a result his promotion was properly revoked.
The Board also determined that the applicant had undergone a medical
evaluation, as was required by regulation, on 31 July 2003, and that
medical examiner determined his overweight condition was not the result of
any medical condition.  The Board concluded that prior to his OSA diagnosis
in November 2003, there was no medical condition that caused him to fail
the weight and/or body fat standard and his unit appropriate placed him
under a suspension of favorable personnel actions (FLAG) and processed his
promotion revocation and removal from the promotion list accordingly.  The
Board found there was insufficient evidence to determine why his
reinstatement requests were not processed in a timely manner.

3.  The applicant resubmits medical evidence regarding his OSA condition
and and other documents that he either submitted to the Board or were
available to the Board in his records during the original review; and
additional supporting statements from his current chain of command and a
NCOER ending in January 2007, as new evidence.

4.  On 12 February 2003, the applicant was conditionally promoted from
staff sergeant/E-6 (SSG/E-6) to sergeant first class/E-7 (SFC/E-7).  His
promotion was contingent on him completing required NCOES course as
scheduled.

5.  On 17 June 2003, the applicant failed to meet body fat standards during
an APFT and was flagged in accordance with the applicable regulation.

6.  On 14 July 2003, HRC published a memorandum informing the applicant
that based on his cancellation from the Advance Noncommissioned Officer
Course due to his failure to meet the standards of Army regulation 600-9,
his name had been administratively removed from the list.  HRC also
published Orders 195-55, revoking the applicant's promotion to SFC/E-7.

7.  On 23 July 2003, the applicant's unit commander indicated that the
applicant exceeded the weight/height tables by 24 pounds and exceeded the
body fat standard by .6 percent, and requested a medical evaluation of the
applicant be completed in order to place him in the Army weight control
program.

8.  On 31 July 2003, a medical evaluation completed on the applicant
resulted in a determination that his overweight condition was not the
result of an underlying medical condition and he was found fit to
participate in the weight control/physical exercise program.

9.  On 19 November 2003, the applicant was diagnosed with OSA and
depression.  He entered medical therapy in December 2003, and was issued a
temporary medical profile, which excused him from physical training (PT).
The examiner assessed that the applicant's obesity was partly caused by his
medical condition and considered that treatment could help his weight loss.


10.  On 21 January 2004, the Director, Sleep Disorders Center, Walter Reed
Army Medical Center, provided a statement to the applicant's unit commander
indicating that the applicant was diagnosed with OSA and he felt the
applicant's inability to perform PT on a regular basis sufficient to
maintain weight standards was due to OSA, and that in turn cost the
applicant promotion.

11.  On 25 February 2004, the applicant was given a permanent profile of
311111.  This profile did not limit the applicant's participation in PT.

12.  On 2 May 2004, a Physical Evaluation Board (PEB) found the applicant's
condition was not unfitting and he was determined to be fit to perform his
duties as a Soldier.  The USAPDA approved the findings of the PEB on 21
June 2004.

13.  The applicant's NCOER for the period June 2006 through January 2007,
shows in Part IVc (Physical Fitness & Military Bearing) that although he
was given a "Success" rating, he was still exceeded the body fat standard
by 2 percent, and that he was making progress every month, which would
indicate he was still in the weight control program at that time.

14.  The applicant provides supporting memorandums, dated in November 2007,
which were submitted by his unit commander, Officer in Charge, and
Noncommissioned Officer in Charge (NCOIC), which support the reinstatement
of the applicant's promotion, and confirm he continues to work hard at
maintaining his weight and physical fitness and that he currently meets the
Army's weight standards.

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides
the Army's enlisted promotion and reduction policy.  Section V, Paragraph 4-
16 contains the rules for removing a member from a centralized promotion
standing list.  It states, in pertinent part, that HRC will delete, without
further board action, the name of any Soldier from the recommended list who
is 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier petition for
reinstatement of his promotion to SFC/E-7 was carefully considered.
However, there is insufficient evidence to support amendment of the
original Board decision.

2.  During its original review, the Board had all the medical evidence the
applicant now resubmits as new evidence.  The only new evidence are
supporting statements provided by members of his current chain of command.
By regulation, the applicant's removal from the SFC/E-7 promotion standing
list and the revocation of his promotion was required based on his failure
to complete the required ANCOES course, which was a condition for his
promotion. This action was automatically taken by HRC based on the
cancellation of his scheduled ANCOC due to his failure to meet weight
control standards.  The action was not command initiated, as indicated by
the applicant, which would have required him to be notified in writing and
provided the opportunity to respond.

3.  As indicated during the original review, the evidence of record
confirms the applicant's removal from the promotion standing list and the
revocation of his conditional promotion to SFC/E-7 was accomplished in
accordance with the applicable regulation.  The action was directed by HRC
based on the cancellation of the applicant's scheduled ANCOC due to his
failure to meet weight standards.

4.  The evidence of record also confirms that the applicant underwent the
required medical evaluation that resulted in a determination that his
failure to meet weight standards was not the result of an underlying
medical condition prior to his removal from the promotion standing list and
the revocation of his promotion.

5.  Although a subsequent medical diagnosis provides some evidence that the
OSA condition may have contributed to the applicant's overweight condition
by inhibiting his ability to participate in PT, this medical evidence does
not appear to be conclusive, and is contradicted by the fact that his
January 2007 NCOER indicates, that although he was making good progress,
the applicant again exceeded weight control standards.

6.  The supporting statements from his current chain of command were also
carefully considered.  However, while these statements attest to the fact
that the applicant currently meets weight standards and is an excellent
performer, they provide no compelling evidence that the original removal
action taken on the applicant was improper.  Further, as indicated in the
HRC advisory opinion provided during the original review, reinstatement of
the applicant would not be appropriate and would afford him an advantage
not given other Soldiers.  As a result, there is an insufficient
evidentiary basis to support amendment of the original Board decision in
this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LDS __  __ECP __  __DLL___  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 to amend the decision of
the ABCMR set forth in Docket Number AR20060006314, dated 31 October 2006.





                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20080001837                           |
|SUFFIX                  |                                        |
|RECON                   |AR20060006314-2006/10/31                |
|DATE BOARDED            |2008/03/DD                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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