IN THE CASE OF:	

		BOARD DATE:	1 October 2009   

		DOCKET NUMBER:  AR20090005461 


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 reinstatement to the rank of sergeant first class (SFC)/
pay grade E-7 which he held from 1 November 1994 through 28 February 1995.

2.  The applicant states there was a push to control failures of the Noncommissioned Officer Education System (NCOES) candidates by requiring Soldiers to pass the Army physical fitness test (APFT) at the unit.  He continues that there was no physical fitness program for Fitzsimons Army Medical Center.  The only physical fitness training done was a monthly run sponsored by the post sergeant major and physical training was only conducted 6 weeks prior to the semi-annual APFT.  The rest of the time his section concentrated on mission accomplishment.

3.  The applicant states that only senior noncommissioned officers were allowed to use duty time for physical training and all other lower enlisted Soldiers were told to be responsible for their individual physical fitness.  The applicant concludes that as a lower enlisted Soldier, he felt cheated by his leaders for not ensuring the fitness level of their Soldiers by saying it was the Soldiers' responsibility.

4.  The applicant provides four leave and earnings statements in support of this application.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 10 September 1970 and was released from active duty on 12 April 1972.  On 20 February 1980, he enlisted the U.S. Army Reserve Delayed Entry Program and in the Regular Army on 6 May 1980.  He was promoted to staff sergeant (SSG)/pay grade E-6 effective 1 April 1992.

3.  U.S. Total Army Personnel Command Order Number 1-29, dated 5 October 1994, promoted the applicant to SFC/E-7 with an effective date and date of rank of 1 November 1994.  The special instructions stated, in part, "SSG promoted to SFC who do not have ANCOC [Advanced Noncommissioned Officer Course] credit are promoted conditionally.  Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they failed to meet the ANCOC requirement."

4.  The U.S. Total Army Personnel Command informed the applicant by memorandum, dated 6 February 1995, that he had been administratively removed from the promotion selection list based on his failure to complete ANCOC.

5.  A second memorandum from the U.S. Total Army Personnel Command, dated 19 May 1995, informed the applicant he had been administratively removed from the promotion selection list based on his failure to attend ANCOC for failing to meet the APFT standards.

6.  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant attended and completed ANCOC from 26 July 1995 through 7 September 1995.

7.  The applicant retired in the grade of SSG/E-6 effective 31 October 1998.

8.  The applicant provided four leave and earnings statements which confirm he was paid as an SFC from 1 November 1994 through 28 February 1995.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated that effective 1 October 1993, the Army linked NCOES to promotion to SSG, SFC, master sergeant (MSG) and sergeant major (SGM).  For promotion to SFC, a Soldier was required to be an ANCOC graduate.  Soldiers selected for promotion to SSG, SFC, and SGM but who had not met the NCOES requirement would be promoted conditionally.  Soldiers who failed to successfully complete or did not attend their scheduled NCOES class would be administratively reduced and removed from the list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his conditional promotion to SFC should be reinstated based on the lack of a physical training program for his unit which caused him to fail the APFT.

2.  The applicant was an SFC with about 15 years of active duty service at the time he failed the APFT.  As an experienced noncommissioned officer, he should have known that his physical fitness level was his own responsibility.  Additionally, the applicant was re-scheduled and successfully achieved ANCOC standards, which attest to his ability to pass the APFT.

3.  The applicant was conditionally promoted to SFC in accordance with promotion procedures in effect at that time.  The applicant accepted the promotion with the condition and understanding that he was required to enroll in and successfully complete ANCOC, and that if he failed to meet those conditions, he would be reduced to the pay grade and rank held prior to the conditional promotion.  The applicant failed to meet the ANCOC requirement by failing to pass the APFT; therefore, he failed to meet the requirement of his conditional promotion to SFC.  As a result, he was administratively reduced to SSG/E-6.

4.  There is no evidence nor has the applicant presented any evidence to show that his reduction to SSG was in error or that an injustice has occurred.  Based on the available evidence, his promotion and reduction appear to have been conducted in accordance with Army regulations and policies.

5.  Based on the foregoing, there is no basis to grant the relief requested.


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)                                         AR20090005461



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ABCMR Record of Proceedings (cont)                                         AR20090005461



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