PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            1 July 1999
	DOCKET NUMBER:   AR1998013071

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Stanley Kelley		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his date of rank (DOR) for promotion to lieutenant colonel (LTC) be adjusted to 1 November 1997.

3.  The applicant states, in effect, that he was selected for promotion to the rank of LTC in October 1996 and that the list was released on 27 March 1997.  He goes on to state that he was not occupying a LTC position at the time and was provided a packet of forms to complete in order to request a delay in promotion until he could find a LTC position.  His request was approved and he found a LTC position on 1 November 1997.  He further states that he again filled out the paperwork he was provided and submitted it to the Army Reserve Personnel Command (ARPERSCOM).  However, after not receiving his promotion, he inquired with the inspector general’s (IG) office and was informed that the ARPERSCOM had not published promotion orders because he had not taken a “For Record” Army Physical Fitness Test (APFT) within the past year.  He continues by stating that he did not take an APFT because he was on temporary duty to a military school when his unit administered the APFT and that an APFT was not given at the school.  When he returned to his unit it was in the process of deactivation and he was tasked with deactivation responsibilities.  He also states that he was unaware that not having a current APFT would delay his promotion and that had he known, he would have taken steps to have one administered, as he did once he was notified.  Additionally, he has never had a problem passing his APFT and extenuating circumstances (mission requirements) were the reason he did not have a “For Record” test.

4.  The applicant’s military records show that he was commissioned as a USAR second lieutenant on 3 July 1978 with a concurrent call to active duty.  He was promoted to the rank of captain on 12 March 1982 and was released from active duty on 1 July 1982 and was transferred to the USAR Control Group (Annual Training).  He was promoted to the rank of major on 13 May 1990.

5.  On 27 March 1997 the 1996 LTC promotion board results were released.  The applicant was selected for promotion; however, because he was not occupying a LTC position he was ineligible for promotion.  The applicant submitted a request for delay in promotion and his request was approved to delay his promotion until 31 December 1997.  The applicant was placed in a LTC position on 1 November 1997.

6.  On 15 March 1998 the ARPERSCOM published orders promoting the applicant to the rank of LTC effective 15 March 1998.

7.  On 22 December 1998 the ARPERSCOM notified the applicant that his DOR could not be adjusted because he did not have a current APFT at the time he occupied a LTC position on 1 November 1997 and that his DOR is based on the date he passed the APFT (15 March 1998).
8.  In the processing of this case a staff advisory opinion was requested from the ARPERSCOM Military Personnel Actions Branch (PAB).  It opined that paperwork regarding the applicant’s promotion was received at the ARPERSCOM on 5 January 1998, which verified that he occupied a LTC position effective 1 November 1997.  However, staffing limitations and the volume of work did not permit immediate action on the applicant’s promotion memorandum.  Meanwhile, the PAB received a call from IG inquiring into the status of the applicant’s promotion.  The IG official was informed that the applicant could not be promoted because he did not have a current APFT within the last year.  On the following day (17 March 1998, the IG official faxed a copy of the applicant’s APFT scorecard showing that he had taken an APFT on 15 March 1998.  Accordingly, the applicant was promoted to the rank of LTC effective 15 March 1998.  The ARPERSCOM went on to opine that in accordance with the law that became effective 1 October 1996, “An officer’s promotion is automatically delayed when the officer—through his own fault has not taken and passed an APFT within the period required by Army Regulation 350-15.”  The advisory opinion was provided to the applicant for rebuttal.

9.  In response to the ARPERSCOM advisory opinion, the applicant responded, in effect, that the unusual circumstances that existed at the time were the cause of his not taking an APFT and that if he had known that he had to have one to be promoted, he would have taken steps to have one administered.  He further states that he was unaware of the requirements of the Reserve Officer Personnel Management Act (ROPMA) and that they were not made known to him until it was too late.  He goes on to state that he completed all of the requirements and paperwork that was provided to him and no mention was made that the lack of a “For Record” APFT would hinder his promotion.  He continues by stating that he took a diagnostic APFT on 10 May 1997 and had he known that he would not have been able to take a “For Record” APFT and that it was necessary for promotion, he would have designated that test to be “For Record.”  He also states that he has always been able to pass an APFT on demand and that he simply did what was required of him under the circumstances that existed at the time.  Additionally, the promotion board in which he was selected was the first board governed under the new ROPMA and yet those rules have still not been disseminated to the field.

10.  A review of the applicant’s records show that the applicant did in fact attend a USAR Unit Movement Officers Course at Fort McCoy, Wisconsin from 8 September 1997 to 19 September 1997.  His records show that he took a “For Record” APFT on 14 September 1996, a diagnostic APFT on 10 May 1997, and a “For Record” APFT on 15 March 1998.  The scores are fairly consistent over a 2-year period.  Additional training records show that it was common practice in previous years that a diagnostic test be administered prior to a “For Record” test. The applicant always passed his APFT.  
11.  Army Regulation 350-15 prescribes responsibilities and policy for the Army Physical Fitness Program.  It states, in pertinent part, that members of USAR Troop Program Units will take the APFT at least once a year.  If only one record test is taken each year, at least 8 months must elapse between record tests.  Members of the Individual Ready Reserve (IRR) will be administered the APFT when they are placed on tours of duty 12 days or more in length.  The test will be administered to IRR members on once a year.  The APFT will be administered for all Army Service Schools that are 56 days or longer and will be a prerequisite for graduation. 

CONCLUSIONS:

1.  Notwithstanding the opinion from the ARPERSCOM, that the applicant is not entitled to be promoted to the rank of LTC earlier than 15 March 1998 because he failed to take an APFT due to his own fault, the Board is not convinced that such was the case or that it was intentional on the part of the applicant.  

2.  Not only does it appear that the applicant failed to take the APFT due to the extenuating circumstances that existed at the time, it also appears that his commander was not aware or was not concerned that he had not been afforded a “For Record” APFT as well.

3.  While the Board is aware that an APFT is required every year, the Board is also aware that circumstances/mission requirements may arise from time to time that appear to have a higher priority to commanders than administering an APFT to one soldier.  In any event, the Army Physical Fitness Program is a commander’s program and the commander is responsible for ensuring that all soldiers are trained and tested.  Individual soldiers should not be penalized for the lack of proper training or failure of the commander to enforce the standards of the program. 

4.  Therefore, based on the evidence submitted and the evidence of record, it appears that the applicant and the commander were not aware of the consequences of not having a current APFT.  It also appears that the applicant was not made aware of the requirement to have a current APFT and had he not inquired on his own, his promotion would have been further delayed.

5.  The Board notes that once the applicant inquired into the status of his promotion, he immediately (next day) took an APFT and faxed it to officials at the ARPERSCOM.  This in itself shows that the applicant was physically fit and that there was no basis for him to avoid taking the APFT.

6.  While the applicant does bear some of the responsibility for not taking the APFT, the applicant bears no more fault than that of the commander who failed to ensure that he had taken the APFT or the ARPERSCOM who failed to timely notify the applicant because of extenuating circumstances (staffing limitations and volume of work), that he required an APFT in order to be promoted.

7.  Consequently, it would be in the interest of justice to correct the applicant’s DOR for promotion to the rank of LTC, as an exception to policy, to 1 November 1997.

8.   In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected as an exception to policy, by showing that the individual concerned was promoted to the rank of LTC, effective 1 November 1997, with entitlement to all back pay and allowances.

BOARD VOTE:  

___fkm __  __sk____  __jhl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn H. Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR1998013071	
SUFFIX		
RECON		
DATE BOARDED	1999/07/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  315 	131.0500/PRM DOR	
2.		
3.		
4.		
5.		
6.