IN THE CASE OF:	  

		BOARD DATE:	        6 August 2009 

		DOCKET NUMBER:  AR20080018293 


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 his rank of sergeant first class (SFC), pay grade E-7 be restored.

2.  The applicant states he was reduced from E-7 back to E-6 for not completing the Advanced Noncommissioned Officer Course (ANCOC) Phase II in time even though he had physical problems.  His unit had scheduled him for a physical but they did not wait for the results of the physical before reducing him in rank.  The results of the physical showed he was a diabetic.  He states the regulation allows for an exception [to policy] due to illness or physical problems.  He alleges that his battalion knew about his physical problems but they did nothing except counsel him.  He continues to state that they [battalion] waited until his unit was about to be mobilized before scheduling him for a physical.  He states that the paperwork [reducing him] was submitted 6 months before the 2-year time period for completion of ANCOC had expired.

3.  The applicant provides, in support of his application, a memorandum, subject:  Request for Restitution of E-7 Rank, (applicant's name), dated 25 August 2008, with attachments 1 to 11; a memorandum, subject:  Request for Restitution of Rank (E7), dated 28 October 2008; and a memorandum, subject:  Request Exception to Policy for Attendance of NCOES [Noncommissioned Officer Education System] Course, dated 12 September 2008.



CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the U.S. Army Reserve (USAR) in the rank of staff sergeant (SSG), E-6.

2.  After having had prior service in the U.S. Marine Corps and the U.S. Marine Corps Reserve, the applicant enlisted in the USAR on 25 February 1989 in the rank of sergeant.  He was ordered to active duty on 3 January 1991 in support of Operation Desert Shield/Desert Storm.  He was released from active duty on 6 July 1991.  On the following day, he was reassigned to the 418th Civil Affairs Battalion.

3.  The applicant was promoted to the rank of SSG, E-6 on 1 April 1992.

4.  He reenlisted in the USAR on 22 May 1999 in pay grade E-6 for a period of 5 years.  He was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 1 July 1999.

5.  The applicant was conditionally promoted to SFC effective and with a date of rank of 1 September 1999 by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC, Orders R308-4, dated 4 November 1999.  The additional instructions state, "This promotion is awarded with the condition that the Soldier must be enrolled in and successfully complete the NCOES course required for the grade to which promoted.  The Soldier understands and agrees that if he fails to meet these conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a 'No-Show,' the Soldier is subject to reduction under Army Regulation 140-158, paragraph 7-12d, to the grade and rank held prior to this promotion.  The Soldier further understands that if reduced, service performed in the higher grade will not be considered in determining retirement grade, date of rank, or any other determinations dependent on the higher grade."

6.  His DA Form 1059 (Service School Academic Evaluation Report) shows he completed ANCOC Common Leader Training Resident Course Phase I from 6 January 2001 through 19 January 2001.  His military occupational specialty was shown as 38A (civil affairs specialist).

7.  Headquarters, U.S. Army Special Operations Command, Fort Bragg, Orders 03-022-00064, dated 22 January 2003, reduced the applicant from SFC to SSG effective 22 January 2003 for failure to successfully complete ANCOC.

8.  The NCOES requirement for promotion to SFC at the time included graduation from ANCOC.  This included either the resident or nonresident course or completion of an Army Correspondence Course Program.

9.  Headquarters, U.S. Army Special Operations Command, Fort Bragg, Orders R022-93, dated 24 January 2003, show he was ordered to active duty on 25 January 2003 in support of Operation Enduring Freedom for a period of 365 days.

10.  The applicant reenlisted in the USAR on 12 January 2004 for an indefinite period.

11.  The applicant's DA Form 1059, dated 9 May 2004, shows he completed ANCOC Phase I, Class 001-04, Nonresident Course from 15 November 2003 through 9 May 2004.

12.  He was ordered to active duty on 15 February 2008 in support of Operation Enduring Freedom and was released from active duty on 30 December 2008.

13.  In a 14 August 2008 memorandum for record, a Civil Affairs Team Leader in the rank of major stated that he was the Assistant S3/2 for the 418th Civil Affairs Battalion in October 2003 when he enrolled the applicant in Phase I of ANCOC.  He stated that the applicant lost his conditional promotion to SFC when he was unable to complete ANCOC within the prescribed time frame.  He tried to help the applicant get his rank of SFC back by enrolling him in ANCOC Phase I.  The Civil Affairs Team Leader also stated that the applicant had previously completed ANCOC Phase I in January 2001.  The applicant successfully completed ANCOC Nonresident Phase I in May 2004 which was held at the National Guard Academy at Fort Bragg.  During this time, the 418th Civil Affairs Battalion was undergoing "reconstitution" since all personnel had just returned from Operation Iraqi Freedom.  He stated that it was a very chaotic time in the unit with many personnel leaving, new Soldiers coming in, and a complete changeover of the command staff.  He continued to state that the applicant had requested Phase II of ANCOC numerous times, but he failed to follow through and schedule him in the Army Training Requirements and Resources System.  In conclusion, the Civil Affairs Team Leader stated that the applicant was not the one to blame for the break down in getting Phase II.

14.  On 25 August 2008, the applicant submitted a request for restitution of his SFC/E-7 rank to his original promotion date.  He stated that he was conditionally promoted to SFC/E-7 in November 1999 after being selected by the 89th Regional Support Command senior promotion board.  He was deployed to Bosnia in January 2000 and returned at the end of August 2000.  He pointed out that this was an authorized delay for enrollment in ANCOC per Army Regulation 140-158 (Army Reserve – Enlisted Personnel Classification, Promotion, and Reduction), paragraph 8-21a(1).  In January 2001, he attended and graduated from ANCOC Phase I.  He continued to state that he failed the Army Physical Fitness Test (APFT) due to the run.  As a result, he was unable to attend ANCOC Phase II.  From that point, he struggled with the APFT due to undiagnosed diabetes and he could not attend ANCOC Phase II.

15.  In his 25 August 2008 request, the applicant referenced events that occurred during January and February 2003.  He received his 5-year physical prior to his mobilization, which was 1 year overdue.  He was informed that his rank of SFC was being taken away for failure to complete ANCOC within the allotted time frame.  He alleged that his reduction in rank occurred prior to the expiration of the 2-year time frame and before the results of his 5-year physical had been received.  His diagnosis of diabetes was not received until early February 2003 and he started going to Fort Bragg for treatment.  His unit decided to leave him at Fort Bragg for medical treatment instead of deploying him to Iraq with his unit.  A master sergeant (MSG)/E-8 in G-1 researched Army Regulation 140-158 and found out that there were exceptions to policy/regulation regarding a medical condition as cited in paragraph 8-21a(4).  He was reenrolled in ANCOC Phase I and successfully completed the course for the second time.

16.  The applicant continued to state that the ANCOC course was held on weekends once a month and he demobilized in April 2004.  The last class and graduation from the course was in May 2004.  He was never enrolled by his unit in ANCOC Phase II.  He contended that no one ever wanted to help him get his SFC/E-7 rank back.  The unit administrator advised him to submit his promotion packet directly to the board instead of the unit.  His promotion packet was returned without action some months later.

17.  The applicant further stated that he submitted his request for retirement to his unit in October 2004.  The company commander and the battalion assistant S2/3 told him that he was too valuable a Soldier and noncommissioned officer to the unit and they would not let him retire because his maturity, knowledge, and experience was needed.  The applicant submitted his promotion packet again in 2004 and 2005 but it never left the unit.  He referenced a message sent out in 2003 (with an effective date of January 2004) stating that ANCOC was not required for promotion to E-7.  He stated that several of his company commanders during this time told him that he could not be promoted to E-7 until he passed ANCOC Phases I and II.  For the reasons stated, he believed that his rank was unjustly taken from him and he should have been restored as soon as it was found out he was diabetic.

18.  The applicant provided the first page of a memorandum, subject:  Request Exception of Policy for Attendance of NCO Education System Course, dated 12 September 2008, from the Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg.  It was requested that an exception to policy for attendance of NCOES course for the applicant be approved.  The memorandum indicated the applicant was administratively reduced in rank from E-7 to E-6 on 22 January 2003 because an exception to policy was not requested by his unit.  It was pointed out that the applicant was promoted to SFC and he completed ANCOC Phase I on 19 January 2001.  In accordance with Army Regulation 140-158, the applicant was required to complete ANCOC Phase II no later than January 2003 unless he was authorized a delay in accordance with paragraph 8-21 of Army Regulation 140-158.  On 12 January 2003, the applicant should have received an authorized delay due to a medical condition that prevented him from completing the course.  The memorandum referenced several attachments included with the applicant's 25 August 2008 request.  The memorandum stated that the applicant's command initiated a DA Form 4187 (Personnel Action) on 19 June 2002 requesting a reduction in rank for the applicant.  This request was made seven months before the authorized time frame.

19.  In a 28 October 2008 memorandum, the Assistant Chief of Staff, G-1, informed the applicant that his request for restitution of rank, SFC, E-7, was returned without action.  The applicant was informed that the original reduction was valid per Army Regulation at the time it was imposed.  The memorandum indicated that although the reduction may appear to be unjust, it constituted no material error by the commander in the conduct of the action.  The applicant was advised to apply to this Board.

20.  On 13 February 2009, a staff advisory opinion was obtained from the Chief, Enlisted Board Support Branch, Promotions Division, U.S. Army Human Resources Command, St. Louis, MO (HRC-STL).  Based on records available to this office, the applicant was assigned as a troop program unit (TPU) Soldier when the alleged injustice occurred.  The promotion and/or reduction of enlisted Army Reserve Soldiers (assigned as TPU to the grade/rank of SFC/E-7) fall under the purview of the respective Army Reserve Command (ARCOM)/United States Army Reserve General Officer Command (GOCOM)/Regional Support Command (RSC) commander, and the U.S. Army Reserve Command (USARC), not HRC-STL.  This office opined that the Army Review Boards Agency (ARBA) should seek an opinion from the applicant's command/promotion authority as to the reasons for the reduction.  This office further opined that, if a reasonable and timely response cannot be provided to ARBA, the applicant's request for redress should be approved.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit any comments.  On 25 February 2009, the applicant concurred with the advisory opinion rendered in his case without comment.

21.  On 22 May 2009, a staff advisory opinion was obtained from the U.S. Army Reserve 90th Regional Readiness Command G-1.  The advisory official recommended that the applicant's request for grade restoration be granted and that the initial effective date and date of rank of 1 September 1999 be used.  It was further recommended that any monetary dollar amount that would have been accrued at the higher pay grade be given to the Soldier.  He pointed out that the applicant was promoted on 1 September 1999 and completed ANCOC Phase I on 19 January 2001.  Army Regulation 140-158, paragraph 8-21a(4) provides a 24-month time frame from Phase I completion until graduation of Phase II.  The applicant's reduction was 24 months and 3 days after completion of Phase I.  The advisory official stated that the command processed the action in a very timely manner.  The applicant's tour of active duty was not within the 2 years between Phase I completion and reduction.

22.  The 22 May 2009 advisory opinion also referenced Army Regulation 
140-158, paragraph 8-21a(4), which states, "is verified as being ill or injured to a degree that prevents enrollment for course completion."  The advisory official stated that the applicant was not verified to be ill until after the reduction had taken place; however, diabetes is a gradual disease and does not always manifest itself immediately.  Had the 5-year physical been administered in a timely manner, the disease would have been identified.  Since the identification of the disease, the applicant passed the APFT in April 2009.  His effort to complete ANCOC is evident by the completion of ANCOC Phase I a second time, even after the reduction and suspension of his conditional promotion effective in January 2003.  The advisory official further stated that the applicant is being currently utilized in an E-8 position within his unit.  At 57 years old, the applicant is not eligible for promotion to SFC, but he has represented the Army Reserve well during 29 years of service.

23.  A copy of the advisory opinion was forwarded to the applicant for comment.  As of 29 June 2009, the applicant had not provided a response.

24.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 8-2, in effect at the time, states that an NCO must be a graduate of the educational course required by the NCOES for his or her current grade.  A Soldier with the rank of SFC must be a graduate of ANCOC.

25.  Army Regulation 140-158, paragraph 8-19, states that a Soldier may be promoted to sergeant through master sergeant on the condition he or she enrolls in and successfully completed the course required for that grade.  If the grade requires the Soldier be a graduate of ANCOC, the Soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of ANCOC within 24 months of the Phase 1 completion date.  The regulation states that an extra 12 months will be allowed for completion of each phase of ANCOC for courses with more than two phases.

26.  Army Regulation 140-158, paragraph 8-21, states that a conditionally promoted Soldier will be authorized a delay for enrollment in or completion of a required NCOES course for a number of reasons, including when the Soldier is verified as being ill or injured to a degree that prevents enrollment or course completion or when the reason for delay has been approved in writing by a colonel or above in the Soldier's chain of command based on documented temporary hardship, pregnancy, unresolvable employment conflict, or personal reasons.

27.  The applicant provided a copy of Headquarters, Department of the Army ALARACT [All Army Activities], DAPE-MP, message dated 211121Z Nov 03, subject:  Suspension of Conditional Promotions Sergeant (SGT) through SFC.  This message applies to all active Army, Army National Guard of the United States, and USAR Soldiers.  It states that, in support of ongoing operational efforts, effective 1 January 2004, NCOES requirements for promotion pin-on (SGT through SFC) cited in Army Regulation 600-8-19, Army Regulation 
140-158, and National Guard Regulation 600-200 are suspended until further notice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SFC with a date of rank and effective date of 1 September 1999 conditional upon his completion of ANCOC.

2.  The applicant completed ANCOC Phase I (resident) on 19 January 2001.  He had 24 months (i.e. 19 January 2003) from the completion date of Phase I to complete and be a graduate of ANCOC.

3.  Orders were issued on 22 January 2003 revoking the applicant’s promotion to SFC effective 22 January 2003.  The applicant was unable to retain his promotion to SFC because he did not complete the required training based on the regulations in effect at the time.

4.  The applicant completed ANCOC Phase I (nonresident) on 9 May 2004.  There is no evidence of record which indicates he completed ANCOC Phase II.

5.  There is no evidence to show that the applicant's medical condition was the cause of his not completing ANCOC Phase II.  Notwithstanding the advisory opinion from the Army Reserve G-1 that the applicant's request for grade restoration be granted, the applicant's reduction from SFC to SSG was appropriate in accordance with the governing regulation.

6.  Therefore, there is there is insufficient basis to restore the applicant's rank back to SFC/E-7.

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)                                         AR20080018293



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ABCMR Record of Proceedings (cont)                                         AR20080018293



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