BOARD DATE: 8 May 2014
DOCKET NUMBER: AR20130015189
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 reconsideration of his previous request for restoration of his promotion to the rank/grade of staff sergeant (SSG)/E-6.
2. The applicant states, in effect, he is providing new evidence that supports his request.
3. The applicant provides:
* a letter, dated 10 July 2013, from the Department of Veterans Affairs (VA) Medical Center, Battle Creek, MI
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 6 June 2013, with cover letter
* five memoranda, dated between 2 March 2005 and 1 October 2007
* DA Form 7574 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 17 November 2006
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 November 2006
* A memorandum for record (MFR), dated 7 January 2007, from the 406th Corps Support Battalion, Ann Arbor, Michigan
* two MFRs, dated 8 January 2007, from the 406th Corps Support Battalion
* DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status), dated 4 May 2007
* nine pages of medical records, dated between 10 April 2008 and 24 June 2013
* two letters, one dated 10 April 2012 and one undated
* a newspaper article from Chesterton, IN, date unknown
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 ABCMR in Docket Number AR20120018287, on 6 June 2013.
2. As new evidence the applicant provides a letter, dated 10 July 2013, from the VA Medical Center, Battle Creek, MI, wherein a health care provider stated:
a. Records showed he was treated at the VA facility, Cleveland, OH, during October and November 2005 and the VA facility, Coatesville, PA, from January to April 2006. During the times of his treatment, it was her opinion that he was most likely struggling with mental and physical health issues that may have hampered his ability to sit in a classroom and to completely comprehend computer program instructions.
b. Test taking may have been very difficult for him due to his post-traumatic stress disorder (PTSD)/bi-polar symptoms and due to the stress of serving in a combat capacity. It was also her opinion that he may not have been aware of time passing or the statute of limitations for advancement testing for his military career at that time.
3. Having had prior active and Reserve service, the applicant enlisted in the U.S. Army Reserve (USAR) on 17 December 1998. On 19 March 2002, he was promoted to rank/grade of sergeant (SGT)/E-5.
4. On 7 December 2003, he was ordered to active duty in support of Operation Iraqi Freedom.
5. On 29 December 2003, he received counseling prior to referral to behavioral counseling due to his previous mental history and current displays of hostility. It was the counselor's belief he was under considerable stress and he wanted him (the applicant) evaluated for his safety and the safety of those around him.
6. On 5 January 2004, he received a temporary profile for behavioral health with no limitations. The profile expired on 5 April 2004.
7. He was deployed to Iraq from 27 February 2004 to 27 February 2005.
8. On 1 February 2005, he was promoted to the rank of SSG.
9. On 29 March 2005, he was released from active duty by reason of completion of required active service.
10. A letter to his command, dated 29 March 2006, from the VA Medical Center, Coatesville, PA, signed by the staff psychologist, stated the applicant had been hospitalized at the Coatesville VA Medical Center since 5 January 2006. It further stated he could resume his normal duties/activities on 12 April 2006.
11. On 13 May 2006, he was enrolled in the noncommissioned officer (NCO) Warrior Leader Course (WLC) at the Regional Training Institute, Utah.
12. He received a Service School Academic Evaluation Report for the period 13 to 27 May 2006 wherein it stated he was being released from the school for the failure to achieve course standards. It was recommended he return to the course after extensive study of leadership manuals and publications.
13. On 1 July 2006, he was reduced to SGT from SSG due to failure to complete the NCO education system (NCOES) requirements for promotion to SSG.
14. On 27 December 2006, he received a permanent profile for PTSD and an inguinal hernia.
15. On 26 February 2008, an informal Physical Evaluation Board (PEB) found him unfit for duty due to PTSD. The PEB recommended a combined disability rating of 50 percent (%) and placement on the Temporary Disability Retired List (TDRL).
16. On 28 May 2008, the U.S. Army Physical Disability Agency notified him his conditional promotion to the rank of SSG was contingent upon his successfully completing the WLC. Due to his academic failure, the conditional promotion was revoked. Therefore, the highest grade he successfully served in was SGT.
17. On 4 July 2008, he was placed on the TDRL with a 50% disability rating in the rank of SGT.
18. On 10 April 2012, an informal PEB found him unfit for duty due to PTSD and Bipolar II disorder. The PEB recommended a combined disability rating of 70% and that he be permanently retired due to disability. On 3 May 2012, he was removed from the TDRL and permanently retired with a disability rating of 70% in the rank of SGT.
19. Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribed policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of USAR Soldiers.
a. Paragraph 7-13d stated a Soldier who accepts a promotion with the condition that he or she must enroll in, and successfully complete, a specified NCOES course, and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a "No-Show," will be reduced to the grade/rank held prior to the conditional promotion.
b. Paragraph 8-2 stated NCOES courses are progressive and parallel the U.S. Army NCO rank structure. Therefore, an NCO must be a graduate of the educational course required by the NCOES for his/her current grade. A Soldier with the rank of SGT must be a graduate of the WLC and a SSG must be a graduate of the Basic Noncommissioned Officer Course (BNCOC).
c. Paragraph 8-19 stated a Soldier may be promoted on the condition he or she enroll in and successfully complete the course required for that grade. If the grade requires the Soldier be a graduate of BNCOC, the Soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date. An extra 12 months will be allowed for completion of each phase of BNCOC for courses with more than 2 phases.
d. Paragraph 8-21a(4) stated a conditionally-promoted Soldier will be authorized a delay for enrollment in or completion of a required NCOES course when the Soldier is verified as being ill or injured to a degree that prevents enrollment or course completion.
e. Paragraph 8-22 b(1) stated when a Soldier fails to complete a required NCOES course and the failure is a result of a delay cited in paragraph 8-21 no adverse action will be brought against the Soldier. The Soldier should be reenrolled as soon as possible after the reason for the delay has been satisfied.
f. Paragraph 8-22b(3) stated when a Soldier is eliminated from a course for academic failure, or for reasons other than for cause, the Soldiers name will be removed from a promotion list and if conditionally promoted, the Soldier will be reduced per paragraph 7-13d.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant failed to achieve course standards of the WLC course and on 27 May 2006 he was released from the course with the recommendation to return after extensive study of leadership manuals and publications.
2. Notwithstanding the statement from his health care provider wherein she stated it was her opinion he was most likely struggling with mental/physical health issues that may have hampered his ability to completely comprehend the course material, there is no evidence in his records and he has not provided sufficient evidence that shows he was released from WLC due to any medical/mental conditions or issues. Regardless, if he had been ill he would have only been authorized a delay for the completion the required course and not excused from ever completing the course.
3. As the requirement for promotion to SSG was contingent on his successfully completing the NCOES requirements for SSG and he did not do so, he was properly reduced to SGT and permanently retired in the rank of SGT.
4. 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 to amend the decision of the ABCMR set forth in Docket Number AR20120018287, dated 6 June 2013.
_______ _ 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) AR20130015189
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