IN THE CASE OF:
BOARD DATE: 30 April 2015
DOCKET NUMBER: AR20140012595
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 her record be corrected to show she retired in the rank/grade of sergeant first class (SFC)/E-7.
2. The applicant states her rank was prematurely reduced in error pending completion of required military schooling.
3. The applicant provides numerous documents from her official military personnel file in support of her claim.
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 enlisted in the Regular Army on 27 September 1978. On 26 September 1982, she was honorably released from active duty in the rank/grade of specialist fourth class/E-4 and transferred to a U.S. Army Reserve (USAR) unit in Willow Grove, PA.
3. On 26 April 1985, the applicant was promoted to the rank/grade of specialist five/E-5. Evidence indicates she was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 4 January 1997.
4. Orders 01-003-029, issued by Headquarters, 99th Regional Support Command (RSC), dated 3 January 2001, promoted the applicant to the rank/grade of SFC/E-7 effective 1 February 2001. The promotion instrument states "This promotion is awarded with the condition the Soldier must be enrolled in, and successfully complete, the NCOES [Noncommissioned Officer Education System Course] required for the grade which promoted. The Soldier understands and agrees that failure to meet these conditions, or subsequent denied enrollment, or failure to meet graduation requirements, or determination as a No-Show, will subject the Soldier to reduction under Army Regulation
140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-12(d), 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 for retirement, date of rank, or any other determination dependent on higher grade."
5. Her record contains a DA Form 1059 (Service School Academic Report) which shows she attended and completed the Common Leader Training Course from 22 February to 6 March 2003.
6. Orders 03-106-00019, issued by Headquarters, 99th RSC, dated 16 April 2003, reduced the applicant from the rank/grade of SFC/E-7 to SSG/E-6 effective 16 May 2003.
7. Her record contains a DA Form 1059 which shows she attended and completed Phase II of the Transportation Management Coordinator Advanced Noncommissioned Officer Course (ANCOC) from 3 to 16 August 2003.
8. Effective 25 September 2005, the applicant was reassigned to the Retired Reserve in the rank/grade of SSG/E-6 due to completing 20 or more years of qualified service for retired pay at age 60. On 13 July 2014, the applicant was placed on the retired list in the rank/grade of SSG/E-6.
9. The applicant provides:
a. A screen shot indicating she attempted to schedule herself for ANCOC Common Leader Training on 22 April 2001.
b. A letter, issued by the Department of Veterans Affairs, dated
12 September 2001, in which a doctor stated the applicant was under medical care for left knee pain. The applicant noted that she was unable to run the two miles the USAR expected of her.
c. Orders pertaining to the applicant reporting to Walter Reed Army Medical Center for a physical examination and a DA Form 3349 (Physical Profile) which show she received a permanent profile (P2) on 27 August 2002, which enabled her to walk the Army Physical Fitness Test (APFT).
d. A copy of an electronic mail communication, dated 3 February 2003, in which a personnel staff noncommissioned officer (PSNCO) stated the applicant failed to attend the ANCOC due to failing the APFT after already receiving a waiver. The applicant had a seat in December 2002 which was cancelled due to this failure. She was being involuntarily transferred and mobilized and the PSNCO asked if she could request an exception to policy, or if she must be reduced. The PSNCO was informed the applicant must be reduced.
e. A screen shot, dated 6 February 2003, which shows a history of the applicant's class reservations. The data shows the applicant was previously scheduled to attend ANCOC; however, she received a "No Show" due to APFT.
f. A letter to the Commander, 656th Area Support Group, dated 14 May 2003, in which the applicant requests to have her reduction in rank reconsidered. The applicant states she received orders reducing her to the rank/grade of SSG/E-6 on 28 April 2003. Due to unit administrative errors and scheduling within the unit, she was unable to satisfy the training requirements of her conditional promotion. She further states records show she diligently pursued the requirements and for cause had to cancel and reschedule schools continually.
g. A letter from the Office of the Inspector General (IG), dated 29 July 2003. The letter states the IG office at Willow Grove investigated the circumstances surrounding her reduction in rank. After reviewing the pertinent regulations and policies under the 99th RSC it was determined that the applicant did not complete Phase I of ANCOC in time to retain her promotion to SFC.
10. Army Regulation 140-158, paragraph 7-12(d) addresses a Soldier's failure to meet conditional promotion NCOES requirements. It states that 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 and rank held prior to the conditional promotion.
DISCUSSION AND CONCLUSIONS:
1. The applicant was promoted to the rank/grade of SFC/E-7 on 1 February 2001. Having not completed her NCOES requirements, her promotion was considered conditional.
2. The evidence appears to show the applicant was unable to attend ANCOC due to failing the APFT. The PSNCO stated the applicant had a seat in December 2002 which was cancelled due to this failure. This statement is further corroborated by a screen shot provided by the applicant that shows she was a "No-Show" to the course due to the APFT.
3. Army Regulation 140-158 clearly states Soldiers who are declared a "No-Show" will be reduced to the grade and rank held prior to the conditional promotion.
4. Based on the foregoing, the applicant provided insufficient evidence to support her claim that her record should be corrected to show she retired in the rank/grade of 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) AR20140012595
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ABCMR Record of Proceedings (cont) AR20140012595
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