PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            15 March 2001     
	DOCKET NUMBER:   AR2000041980

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Richard T. Dunbar		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, in effect, that all references to his having been academically eliminated from the Advanced Non-commissioned Officer Course (ANCOC) be expunged from his records and that he be reinstated to the E-7 promotion list.

3.  The applicant states, in effect, that he reported for ANCOC in March 1999 and sustained an injury during his initial physical fitness test (APFT) which prevented him from continuing the course.  He states that as a result he was “academically eliminated” from ANCOC “due to APFT test failure” and ultimately removed from the E-7 promotion list.  The applicant indicated that once he realized that he had been “academically” eliminated, as opposed from being “administratively” eliminated from the course, he appealed the elimination action.  He states that initially his appeal was denied but in March 2000 he was successful in having the evaluation report changed from an academic elimination to an administrative elimination and advised that he needed to apply to this Board to have his former rank reinstated and to be rescheduled for ANCOC.

4.  Records available to the Board indicate the applicant was promoted to pay grade E-7 on 1 December 1998.  The promotion was “conditional” because the applicant had not completed ANCOC.  The promotion order noted that “soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet NCOES…requirements.”

5.  The applicant reported for his ANCOC at Fort Jackson, South Carolina on 
29 March 1999 and on 1 April 1999 was “academically eliminated due to APFT test failure.”  The ensuing academic evaluation report noted that the applicant “injured self during initial APFT, subsequently received temporary profile precluding retest throughout duration of course.”  The adverse academic report was provided to the applicant on 2 April 1999 with information concerning his right to “comment on the content of” the report.  The referral also referred the applicant to the provisions of Army Regulation 351-1 which outlined “the procedure that are to be followed in determining your eligibility for re-entry or further NCOES training.”  The academic evaluation report is filed in the applicant’s Official Military Personnel File (OMPF).

6.  A 20 April 1999 memorandum from the Chief, Enlisted Promotions Branch at the U.S. Total Army Personnel Command notified the applicant that because of his “release from ANCOC due to APFT failure” his name was being administratively removed from the E-7 promotion list.  The administrative removal effectively reduced the applicant to pay grade E-6, although the 1998 promotion remains in the applicant’s OMPF.

7.  In June 1999 the applicant’s petition to be reinstated “to Sergeant First Class” was denied by the Noncommissioned Officer Education System (NCOES) Reinstatement Panel.  The panel noted that the “submitted reasons did not warrant reinstatement or reversal of the decision regarding” the applicant.

8.  The applicant pursued his request to have his termination from the ANCOC changed from an academic elimination to an administrative elimination via a legal assistance attorney at Schofield Barracks, Hawaii.  The legal assistance attorney indicated in his correspondence to the commandant of the Advanced Non-commissioned Officer Academy that the commandant’s assistant noted that the applicant had been academically eliminated from the ANCOC because “he failed the sit-up event and then subsequently went to see the doctor” and that the applicant “only went to see a doctor after realizing that he had failed the sit-up event.”  The attorney argued that the applicant “was diagnosed by a doctor to have been injured during the sit-up event” and that it was “irrelevant whether [he] completed the event or terminated the event….”  The attorney concluded that “a medical doctor in this case has determined that [the applicant] was in fact injured during the APFT” and as such should have been administratively and not academically eliminated from the ANCOC.

9.  In March 2000 the applicant’s 1999 academic evaluation report was “corrected” to show that he was administratively eliminated from ANCOC class 
8-99 vice academically eliminated.  However, according to a letter to the applicant from the Deputy Commander, U.S. Army Soldier Support Institute, because the ANCOC Reinstatement Panel had already adjudicated the applicant’s petition to return to ANCOC, correcting the evaluation report did not automatically “reinstate [his] rank or reschedule [his] attendance to the Advanced Noncommissioned Officer Course.”  The applicant was informed in that same letter that action by this Board was required to accomplish those two actions.

10.  Army Regulation 600-8-19, which establishes the policies and provisions for the promotion of enlisted soldiers, states that ANCOC was a requirement for promotion to pay grade E-7.  Soldiers selected for promotion to E-7 who have not met the NCOES requirement will be promoted conditionally.  Those soldiers who fail to successfully complete ANCOC for cause, academic reason, or are being denied enrollment for cause or do not attend their scheduled ANCOC class will have their conditional promotions revoked and their names removed from the promotion list.

CONCLUSIONS:

1.  In view of the fact that his academic evaluation report has been corrected he is entitled to have that report filed in his OMPF and the original report expunged. 

2.  The Board concludes that had the applicant originally been administratively eliminated from the ANCOC his name would not have been removed from the
E-7 promotion list and he would have been permitted to re-enroll in the ANCOC.  As such the Board concludes that the applicant’s name should be restored to the E-7 promotion list, his conditional promotion reinstated with appropriate back pay and allowance and he should be rescheduled for ANCOC.  It would also be appropriate, and in the interest of justice to expunge the 20 April 1999 memorandum, which administratively removed his name from the E-7 promotion list, from his OMPF.

3.  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:

a.  by expunging the original 1999 ANCOC academic evaluation report which academically eliminated the applicant from ANCOC and replacing it with the corrected report,

b.  by scheduling the applicant for the next available ANCOC class,

c.  by reinstating the applicant to the E-7 promotion list, 

d.  by restoring his conditional promotion with appropriate back pay and allowance; and 

e.  by directing the Commander, U.S. Total Army Personnel Command to remove from the individual’s records any and all indications he failed ANCOC, was removed from the E-7 list, and was removed from his conditional E-7 promotion status.  This specifically includes the removal of the 20 April 1999 memorandum from his OMPF which removed his name from the E-7 promotion list.

BOARD VOTE:  

___emw__  __teo___  ___rtd__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041980	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010315	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	112.02	
2.	128.00	
3.	111.00	
4.		
5.		
6.