MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 April 2000
	DOCKET NUMBER:   AR2000036657

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

	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Thomas A. Pagan		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Correction of his military records by reinstating him on the Advanced Noncommissioned Officer Course (ANCOC) attendance list, the 1997 sergeant first class (SFC) promotion selection list, and by promoting him to SFC.

APPLICANT STATES:  In a detailed personal statement, in effect, that he was removed from ANCOC and administratively reduced in rank for being overweight (OW); and that it was later determined that his OW condition was caused by a knee injury he received while in a temporary duty status at Fort Lewis, Washington.  He further states that he was flagged from 16 March to 23 March 1998 for his failure to meet height and weight standards under Army Regulation (AR) 600-9 but the flag was subsequently lifted even though he was still under a temporary profile and couldn’t take an Army Physical Fitness Test.  He also stated that competent medical authority determined that his injury contributed to his inability to comply with AR 600-9; that his unit first sergeant advised him that he would be deferred from ANCOC and notified of the new attendance date; that he never received any instructions from ANCOC officials concerning his deferment status or reporting date; and that his reduction in rank and removal from ANCOC was done without any prior warning or without him being afforded an opportunity to appeal these actions.  In support of his request, he submitted a detailed personal statement and a number of supporting documents contained in a plastic binder and listed as enclosures tabbed A through O.

EVIDENCE OF RECORD:  The applicant's military records show:

He initially enlisted in the USAR in June 1981 and entered active service in the Regular Army on 6 October 1983.  He is currently on active duty in the rank of staff sergeant (SSG) at Fort Sam Houston, Texas in military occupational specialty 91B. 

The 1997 SFC promotion selection list indicated that he was selected for promotion to SFC.  He was promoted to SFC on 12 January 1998, with a date of rank of 1 February 1998 under U.S. Total Army Personnel Command (DA PERSCOM) order 012-17.  The order contained special instructions indicating that those SSG promoted to SFC who do not have ANCOC credit are promoted conditionally; and that those who receive conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement.  His personal statement indicated that on 25 January 1998, his chain of command notified him that he would be attending ANCOC on 16 April 1998.

On 29 January 1998, the Director, Combat and Doctrine Development, Academy Battalion, Fort Sam Houston, a full colonel, requested an operational deferment 

from his April 1998 ANCOC due to his participation as a project officer in a vital combat development project at Fort Lewis, Washington from 13 April to 
22 April 1998.  The applicant stated that he never received an official notification 
of the final disposition of this request.

DA Form 5181-R, screening note of acute medical care, indicated that on 10 February 1998, he received medical attention for pain in his left knee.  The document indicated that he had experienced left knee pain for the past 2 months; that the pain worsened when he went up and down stairs; and that his condition was diagnosed as prepatellar bursitis.  He was prescribed pain medication and 
given a two-week profile which restricted exercises that involved knee bending and flexing.  The profile did not restrict other exercises normally associated with PT however, his aerobic conditioning included only walking and swimming at his own pace.  The follow-up examinations on 24 February and 2 April 1998 showed no change in his condition; that his profile had been extended; that he was given additional pain medication; that he had resumed running 4 to 5 days per week; and that he was referred for physical therapy.  During the 2 April 1998 examination, he was restricted from running, jumping and marching for 10 days and required to ice down his knee 3 times a day.  There was nothing in any of these medical documents to indicate the origin of the prepatellar bursitis in his left knee.

DA Form 268, Report to Suspend Favorable Personnel Actions (FLAG), shows that he was initially flagged on 11 Feb 1998, for OW.  Information contained in his official ANCOC records shows that as of 11 February 1998, his height was listed at 67 inches, he weighed 204 pounds, his body fat (BFP) percentage was 29.67%, and the maximum BFP for his height was 24%.  A second DA Form 268 shows that he was flagged for OW on 16 March 1998.  A third DA Form 268 shows that the flag was removed on 23 March 1998, and that the case was closed favorably.

On 15 May 1998, he was officially notified by DA PERSCOM, Enlisted Promotions Branch, that he was administratively removed from the 1997 SFC promotion list due to his failure to attend ANCOC resulting from his failure to meet the height, weight and BFP under AR 600-9.  His official ANCOC records contained documents showing that he was declared an ANCOC “no-show” based on the initial flagging action of 11 February 1998.

On 18 June 1998, he was officially notified by DA PERSCOM, Accessions Management Branch, that the Noncommissioned Officer Education System (NCOES) Reinstatement Panel considered all matters pertaining to his request for the reinstatement of his promotion to SFC and ANCOC and determined that his reasons did not warrant his reinstatement or reversal of the prior decision. 

A memorandum dated 12 December 1998, signed by a lieutenant colonel, his battalion commander, pertained to a reply to his request for redress under 
Article 138 regarding his removal from the SFC list and his failure to attend ANCOC.  The memorandum stated, in effect and in pertinent part, that the decision to direct flagging action to identify him as an OW soldier based on his failure to meet the BFP by exceeding the maximum BFP by 5.67%, initially, on 11 February 1998 and then, again on 16 March 1998, due to an administrative reporting error, was correct and appropriate.  

The memorandum further stated that according to NCOES policy guidance, ANCOC orders will not be published by local school officials until a height and weight statement certified by the individual’s unit commander is obtained.  The memorandum also stated that contrary to the applicant’s assertion that his knee profile constituted a basis for a medical deferment, his unit commander acted properly by not obtaining a medical deferment based on a two-week temporary profile which did not hinder him from meeting his maximum BFP but by promptly reporting, instead, his height and weight status as of 11 February 1998 which, by virtue of his OW condition on that date, rendered him ineligible to attend ANCOC and thereby ineligible to keep his SFC rank.  

The memorandum added that the aforementioned was personally discussed with his first sergeant and that he was aware of the forthcoming action to remove him from the SFC promotion before the order confirming such action was received by him in June 1998.  There was nothing contained in this memorandum or elsewhere in his available records to indicate that the chain of command notified him that he would be deferred from ANCOC and his class date rescheduled.

A statement of physical conditioning dated 5 April 1999, signed by a physician assistant, an Army major, stated, in effect, that his OW condition in 
April 1998, could easily be attributed to a preceding injury and treatment episodes; and that as part of his treatment, he was restricted from running until 12 April 1998.

The ANCOC selection and attendance policy which is a part of the Army’s “select-train-promote” concept to further enhance NCO professional development is linked to promotion to SFC and was implemented in September 1997, with the release of the 1997 SFC promotion list.  Under this policy, soldiers are required to attend ANCOC only after selection to SFC.  General policy implementation guidelines state, in effect, that (1) ANCOC attendance will occur within one year after the release of the appropriate SFC selection list; (2) Soldiers may be deferred only once for operational reasons; (3) Other than for operational reasons, soldiers may only be considered for deferments for medical or 

compassionate reasons; and (4) Soldiers who fail to attend their scheduled ANCOC class for any reason other than those stated above, and subsequently 
declared a “no-show” either by ANCOC officials or by DA PERSCOM, are removed from the centralized promotion list.  

The guidance further states that leaders at all levels must understand the consequences of administratively “holding” a soldier and creating a “no-show” situation; and that even if a well-intended chain of command believes a soldier may likely have difficulty in passing a physical fitness test or meeting height and weight requirements at the time of enrollment, failure to report to ANCOC will cause the promotion to be revoked.  The policy guidance also states that leaders and soldiers alike must also understand that promotion to SFC is conditioned on the completion of ANCOC.  Those who are promoted to SFC before completion of ANCOC are promoted conditionally and failure to meet enrollment requirements or meet academic requirements for successful completion of ANCOC would result in administrative reduction to SSG with the original date of rank to SSG or removal from the SFC promotion list if promotion had not yet occurred.  Soldiers in this category would have to re-compete for promotion during a subsequent SFC promotion board to regain ANCOC eligibility and/or SFC selection.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that his knee injury was the primary factor in his failure to meet height, weight, and BFP standards which formed the basis for his failure to attend ANCOC and his removal from the SFC promotion selection list is not credible.  

2.  The evidence of record strongly suggests that his weight control difficulty began long before he was first reported OW on 11 February 1998.  While the Board agrees that his knee condition may have prevented him from doing the kind of PT that he may have been normally accustomed to doing, he had ample advanced notice and he was fully aware of the requirement to successfully complete ANCOC as a condition for retaining promotion to SFC, therefore he could have easily pursued alternative dietary and PT measures so that he could successfully maintain his weight and otherwise, be physically fit for ANCOC enrollment. 

3.  The Board further concludes that his chain of command had a responsibility and acted properly to report his readiness for ANCOC enrollment in a timely manner, well in advance of his class start date, and the fact that he was only able 

to meet the height, weight, and BFC criteria just less than a month before the start of his ANCOC on 16 April 1998, reflects too little effort on his part and is too late.  As a newly promoted senior NCO, he had an inherent duty to be physically fit within the limits of his temporary profile including meeting weight and BFP standards and ready to attend ANCOC when he was first notified on 25 January 1998 and thereby avoid this unfortunate but very predictable consequence. 

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the 
record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__EB___  ___KW__  __TP___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036657	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA  	
DISCHARGE REASON	NA	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131	
2.		
3.		
4.		
5.		
6.