IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20090020097 


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, in effect, reinstatement of his promotion to sergeant first class (SFC)/E-7.

2.  The applicant states:

	a.  In April 2008, he was involuntarily assigned to the 855th Quartermaster Company in South Bend, IN.  In June 2008, he submitted his promotion packet for E-7 to the 88th Regional Support Command (RSC) with all of the correct documentation.

	b.  On 17 July 2008, while drilling at South Bend, he took an Army Physical Fitness Test (APFT) and failed.  He asked if it was for record and was told "yes" because he had just been assigned to the unit; however, he had just submitted valid and current APFT results with his promotion packet.

	c.  In September 2008, he was selected for promotion to E-7, but his promotion was held up because of the flag [he had received due to APFT failure].

	d.  For the entire month of October 2008, he drilled in Ohio.  By command directive from Captain (CPT) P-----, commander of the 855th, he was to administer the APFT test to any Soldiers who missed the July 2008 drill or failed the APFT at the drill and any Ohio Soldiers who were assigned to the 855th.  He administered about 10 to 15 APFTs and took one himself, administered by the 1001st training noncommissioned officer (NCO), Staff Sergeant (SSG) L---, and graded by Specialist C-------.
	e.  When he went to South Bend for a combat lifesaver course from
22 through 25 October 2008, he transported all of the training records and pay rosters [for Soldiers who had been transferred from Ohio to Indiana].  When he arrived, he informed First Sergeant (1SG) W-------- that he had to sign his DA Form 705 (Army Physical Fitness Test Scorecard) himself because SSG L--- was not available when he left and the results were on a piece of paper.  
[1SG W--------] said "okay."  The 855th accepted the APFT results, entered the information into the Regional Level Application Software (RLAS), submitted the results to the promotion board as valid, lifted his flag, and published his promotion orders.

	f.  In June 2009, CPT P----- and 1SG W-------- sent statements to Lieutenant Colonel (LTC) R-----, the peacetime chain of command at South Bend, IN, requesting that he contact the 645th Regional Support Group (RSG) to inform them that [the applicant's] APFT was invalid because [the applicant] had signed the DA Form 705 himself and to ask them to ask the 88th RSC to revoke [the applicant's] promotion order.  The 88th RSC revoked the requested promotion order.

	g.  [The applicant] then corrected the DA Form 705, had it signed by SSG L---and SPC C-------, and resubmitted it to Master Sergeant (MSG) T---- B----- in the office of the G-1, 310th Expeditionary Sustainment Command (ESC), for the orders to be republished.  MSG B----- informed him he was no longer on the promotion list.

	h.  The 855th failed to use the proper chain of command channels in Iraq to have his orders revoked; therefore, this matter should be reversed and the orders republished.  His APFT was never invalid.  All paperwork was corrected and resubmitted properly.  The APFT results were deemed valid for his Contingency Operation for Active Duty Operational Support (CO-ADOS) packet.

3.  The applicant provides:

* an e-mail, dated 5 June 2009, from a Mr. R----- to CPT P-----
* a memorandum pertaining to a corrected DA Form 705, dated 6 August 2009
* a DA Form 705, dated 17 October 2008
* a DA Form 5500 (Body Fat Content Worksheet (Male)), dated 22 October 2008
* a memorandum denying his request to enter the Sanctuary Program with supporting documentation, dated 26 October 2009


* Orders 09-093-00005, Headquarters, 88th RSC, Fort McCoy, WI, dated
3 April 2009
* Orders 09-103-00011, same headquarters, dated 13 April 2009
* Orders 09-093-00004, same headquarters, dated 3 April 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 6 September 1983 to
12 September 1998 and served in the U.S. Army Reserve (USAR) from
14 September 1998 through the date of his application.  

2.  A DA Form 2166-8 (NCO Evaluation Report) for the period ending 24 April 2008 shows, in Part IVc, the applicant passed the APFT on 5 April 2008.

3.  Orders 08-116-00011, dated 25 April 2008, reassigned the applicant from his troop program unit (TPU) to the 855th Quartermaster Company, another TPU within the 88th RRC.

4.  A DA Form 2166-8 for the period ending 16 January 2009 shows he passed the APFT on 17 October 2008.

5.  The record is void of documentation pertaining to an APFT taken between
5 April 2008 and 17 October 2008 or the flag the applicant received due to APFT failure.

6.  Orders 09-093-00004, dated 3 April 2009, promoted the applicant to sergeant first (SFC)/E-7 effective 1 February 2009.

7.  Orders 09-258-00003, dated 15 September 2009, revoked Orders
09-093-00004.

8.  The e-mail provided by the applicant shows, on 5 June 2009, Mr. R----- provided CPT P----- a copy of the order revoking the applicant's promotion.  Mr. R----- stated "I had spoken with the 645th RSG on revoking his promotion order and sent them copies of all the documents I received concerning his invalid APFT.  The 88th RSC must have gotten it from them and reviewed his promotion packet."

9.  The applicant provides a memorandum, dated 6 August 2009, to MSG T---- 
B----- at the 310th ESC showing he provided a certified true copy of a DA
Form 705 documenting an APFT he took on 17 October 2008.  He stated the 


form was signed by the Training NCO, SSG L--- and initialed by the grader,
SPC C-------.  He further stated "Please resubmit this to my promotion packet for E-7 so my E-7 orders can be republished."

10.  The DA Form 705 provided by the applicant bears the date 17 October 2008 and documents passing APFT scores.  The signature on the form is illegible.  The rank/grade SSG/E-6 is noted beside the signature.

11.  The DA Form 5500 provided by the applicant bears the date 22 October 2008 and shows he met body fat standards.  The signatures on the form are illegible.  The ranks SSG and SFC are noted beside the signatures.

12.  During the processing of this case, on 1 May 2010, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA.  The advisory official states:

	a.  the applicant was not eligible for promotion consideration when the September 2008 promotion board convened and his promotion was in error;

	b.  the flagging action for APFT failure rendered him ineligible for consideration;

	c.  the 88th RSC promoted him into a position based on the results of the board, but when it was determined he was ineligible, his promotion orders were revoked and he was removed from the promotion list; and

	d.  on 17 October 2008, the applicant passed the APFT and could have submitted a promotion packet to the next scheduled promotion board if otherwise eligible for consideration.

13.  On 6 May 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

14.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states Soldiers who fail to pass the APFT or fail to take the APFT within the required period will be flagged.  The flag is removed on the day the Soldier passes the APFT or at expiration term of service (ETS)/expiration of service agreement (ESA)/mandatory release date (MRD).  A flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion.


15.  Army Field Manual 21-20 (Physical Fitness Training) provides instructions for administering the AFPT and states individual Soldiers are not authorized to administer the APFT to themselves for the purpose of satisfying a unit’s diagnostic or record APFT requirement.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 5, prescribes policy for the promotion of USAR Soldiers assigned to TPUs, Army Reserve Elements, and multi-component units.

	a.  This chapter states a Soldier is nonpromotable to a higher grade when he or she has incurred a flagging action under the provisions of Army Regulation 600–8–2.  A Soldier with a flag in effect may be considered by a promotion board and placed on the recommended list for promotion to SFC/E-7.  However, the Soldier cannot be promoted until the flag has been lifted.

	b.  When the promotion/convening authority determines that a Soldier was erroneously considered, selected, and promotion orders issued before discovery that the Soldier did not meet appropriate eligibility criteria, the promotion/
convening authority will take the following applicable actions:

		(1)  Determine whether the member is eligible for promotion consideration under later selection board criteria on the basis of his or her current status.

		(2)  Determine if the Soldier will have his or her DOR adjusted in lieu of revocation of promotion orders.

		(3)  Determine whether the promotion will be revoked and if appropriate, authorized a de facto status.

		(4)  Advise the commander and Soldier on actions taken.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reinstatement of his promotion to SFC/E-7 was carefully considered and found to be unsupported by the evidence.

2.  The advisory opinion obtained during the processing of this case indicates the applicant was ineligible for consideration during the September 2008 promotion board because he had been flagged for failure of the APFT test.  This contradicts Army Regulation 600-8-19, which clearly states a flag is not a bar to consideration for promotion to SFC.  A flag does bar selected individuals from 


being promoted until the flag is removed.  Although this information may have prevented the applicant's selection for promotion to SFC/E-7, it would not have been sufficient cause for the applicant's packet to be removed from consideration by the promotion board.

3.  The applicant admits he failed the APFT on 17 July 2008 and he was flagged for APFT failure.  This flag would have been lifted when he passed the APFT on 17 October 2008.

4.  However, the applicant also admits that, on or about 17 October 2008, he signed his own APFT scorecard because the NCO who administered the test was not available.  This act was a serious lapse in judgment and violation of published procedures for the APFT test.  He then allowed this invalid scorecard to stand as the document of record and did not seek to file an administratively correct scorecard until he was aware that his promotion would be revoked.

5.  Contrary to the advisory opinion, the available evidence indicates the applicant's promotion to SFC/E-7 was revoked due to discovery of his invalid APFT scorecard.  Although the applicant states the APFT results in question were never invalid, he does not dispute the fact the scorecard was invalid, nor has he provided evidence indicating his chain of command failed to follow prescribed administrative procedures in revoking his promotion.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090020097



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ABCMR Record of Proceedings (cont)                                         AR20090020097



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