IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080002101 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be advanced from pay grade E-5 to the highest pay grade he held of E-6.

2.  The applicant states that he was issued legal conditional promotion orders to pay grade E-6.  Conditional promotions were being made available to units to ease manpower shortages during their activation in the Bosnian theater, as well as his specific section’s E-6 46R3O shortages.  Following demobilization, he attended his unit's annual training and monthly drills but not the Basic Noncommissioned Officer Course (BNCOC).  During this time he was having conflicts with his civilian employer in getting an available furlough for the time periods that a course seat materialized and therefore could not meet the one-year conditional promotion policy requirement.  He was still issued satisfactory annual evaluation reports as well as being retained in pay grade E-6.  He states that he was reduced to pay grade E-5 on 5 October 2000 based on a policy which has been suspended indefinitely.

3.  The applicant adds, in effect, that he was again conditionally promoted to pay grade E-6 and attended the BNCOC but was unable to satisfactorily complete the course due to bronchitis.  He was sent home and automatically reduced to pay grade E-5.

4.  The applicant concludes by requesting advancement to pay grade E-6 with an effective date of 16 December 2007 for retired pay purposes since his longest period of duty in pay grade E-6 was 3 years and 10 months filling a shortage of school-trained NCOs.

5.  In support of his application, the applicant submitted copies of Headquarters, 325th Finance Battalion, Whitehall, Ohio, Orders 344-001 published on 9 December 1996; his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 14 February 1997; NCO Evaluation Reports with "Thru" dates of February 1997, November 1997, November 1998, November 1999, and October 2000; and 325th Finance Battalion Orders 279-1, Orders 060-001, and Orders 246-3, published on 5 October 2000, 1 March 2001, and 3 September 2001 respectively.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that he enlisted for 6 years in the US Army Reserve on 6 June 1970.  He continued his service in the Reserve through a series of reenlistments and extensions of service.  The applicant was placed on the retired list on 16 December 2007 in the rank and pay grade of sergeant, E-5, by US Army Human Resources Command, St. Louis, Missouri, AHRC-PAP-T Orders P11-795397 published on 28 November 2007.

2.  The evidence shows that the applicant was promoted to the rank and pay grade of sergeant, E-5, with an effective date and date of rank of 1 June 1994 by US Army Reserve Command, Columbus, Ohio, Orders 053-002 published on 1 June 1994.

3.  The applicant was conditionally promoted to the rank and pay grade of staff sergeant, E-6, with an effective date and date of rank of 9 December 1996 by Headquarters, 325th Finance Battalion, Orders 344-001 published on 1 June 1994 in accordance with the provisions of Army Regulation 140-158.  The applicant acknowledged in his application to the Board that he understood that the promotion was conditioned upon his enrolling in and successfully completing the Noncommissioned Officer Education System (NCOES) course required for the grade to which promoted, the BNCOC.

4.  The applicant was ordered to and entered active duty in support of Operation Joint Endeavor on 5 June 1996.  The applicant deployed and served in Germany, Hungary, and in Bosnia.  He was released from active duty on 14 February 1997 at the completion of his required active duty service.  The DD Form 214 the applicant was provided shows he served in the rank and pay grade of staff sergeant, E-6, with a date of rank of 9 December 1996.

5.  On 30 October 1996, the applicant was issued a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60, by the US Army Reserve Personnel Center, St. Louis, Missouri.

6.  The NCO Evaluation Reports the applicant provided with "Thru" dates of February 1997, November 1997, November 1998, November 1999, and October 2000 show he was evaluated in the rank of staff sergeant.  Each of the NCO Evaluation Reports shows the level of his performance to have been "successful."

7.  Headquarters, 325th Finance Battalion, Whitehall, Ohio, Orders 279-1, published on 5 October 2000, show the applicant was reduced in rank and pay grade from staff sergeant, E-6, to sergeant, E-5, with an effective date of 5 October 2000 in accordance with Army Regulation 140-158, paragraph 7-12d.

8.  Headquarters, 325th Finance Battalion, Orders 060-001, published on 1 March 2001, show the applicant was again promoted to the rank and pay grade staff sergeant, E-6, with an effective date and date of rank of 1 March 2001 in accordance with the provisions of Army Regulation 140-158, paragraph 3-2b.  The applicant was advised by the additional instructions that the promotion was conditioned upon his enrolling in and successfully completing the NCOES course required for the grade to which promoted.  The applicant understood and agreed that if he failed to meet those conditions, or was subsequently disenrolled, or became an academic failure, or did not meet graduation requirements, or was declared to be a "no-show," he was subject to reduction to the grade and rank he held prior to his conditional promotion.  The applicant was further advised, and he understood, that if he were reduced, service performed in the higher grade would not be considered for retirement, date of rank, or any other determinations dependent on the higher grade.

9.  Headquarters, 325th Finance Battalion, Orders 246-3, published on 3 September 2001, show the applicant was reduced in rank and pay grade from staff sergeant, E-6, to sergeant, E-5, with an effective date of 3 September 2001 in accordance with Army Regulation 140-158, paragraph 7-12d.  The applicant's date of rank was reestablished as 1 June 1994.

10.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 7 August 2008, shows he was transferred to the Retired Reserve on 6 September 2004.  On this date, the applicant had completed 28 qualifying years for retirement.

11.  A copy of a DA Form 1059 (Service School Academic Evaluation Report) covering the period 26 August 2001 through 2 September 2001 is filed in the applicant's official military personnel file.  The DA Form 1059 shows the applicant failed to achieve course standards for the TATS BNCOC Phase I.  The applicant received an unsatisfactory evaluation for leadership skills, was not evaluated for his written communication skills or for his research abilities, and was given a satisfactory evaluation for his oral communication skills and for his contribution to group work.

12.  The comments made by his evaluator in the DA Form 1059 included the following:  administratively disenrolled for failure to meet course standards; failed to meet Army Physical Fitness Test (APFT) standards by failing both the initial APFT and the APFT retest; and displayed poor leadership skills by failing the APFT.

13.  The DA Form 1059 was referred to the applicant.  He acknowledged receipt of the DA Form 1059 and its contents.  The applicant, in addition, made a statement that he had failed the APFT by only three pushups, that he would request reenrollment in the course within nine months or sooner prior to his BNCOC Phase II seat in 2002.

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.

2.  The applicant, who at the time was serving in the rank and pay grade of sergeant, E-5, was conditionally promoted to the rank and pay grade of staff sergeant, E-6.  He was promoted under the condition that he enroll in and satisfactorily complete the required level of training for this rank, the BNCOC.

3.  The applicant alleges that at the time he was having conflicts with his civilian employer in getting an available furlough for the time periods that a course seat materialized, and therefore could not meet the one-year conditional promotion policy requirement.

4.  The evidence shows that he continued to perform the duties of a conditionally promoted staff sergeant for a period of nearly 3 years and 10 months and throughout this period he earned NCO evaluation reports that were in the "successful" range; however, he was reduced to pay grade E-5 on 5 October 2000 for not having completed the required level of military education for his rank.

5.  The evidence shows that the applicant was again conditionally promoted to pay grade E-6.  At the time of his promotion, the applicant was advised by the additional instructions in his promotion orders that the promotion was conditioned upon his enrolling in and successfully completing BNCOC.  The applicant understood and agreed that if he failed to meet those conditions, or was subsequently disenrolled, or became an academic failure, or did not meet graduation requirements, or was declared to be a "no-show," he was subject to reduction to the grade and rank he held prior to his conditional promotion.  The applicant was further advised, and he understood, that if he were reduced, service performed in the higher grade would not be considered for retirement, date of rank, or any other determinations dependent on the higher grade.

6.  The applicant alleges that he was unable to complete the course due to bronchitis; however, he provided no medical evidence that he was dropped from the course for illness, and in particular, bronchitis.  The evidence does show that the applicant failed to achieve course standards; he received an unsatisfactory evaluation for leadership skills because he displayed poor leadership skills by failing both the initial APFT and the APFT retest.

7.  The DA Form 1059 which was prepared on his disenrollment was referred to him.  He acknowledged its receipt and its contents.  The applicant made a statement that he had failed the APFT by only three pushups, that he would request reenrollment in the course within nine months or sooner prior to his BNCOC Phase II seat in 2002.

8.  When he applicant was sent home, he was automatically reduced to pay grade E-5.

9.  The evidence shows that the applicant failed to satisfy the conditions for his conditional promotion to the rank and pay grade of staff sergeant, E-6, not once, but twice.  He was aware and understood those conditions and further understood that if he were reduced, service performed in the higher grade would not be considered for retirement, date of rank, or any other determinations dependent on the higher grade.

10.  In view of the foregoing considerations, there is no basis for granting the applicant's request for his advancement from pay grade E-5 to the highest pay grade he held, E-6.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002101





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ABCMR Record of Proceedings (cont)                                         AR20080002101



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