PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 February 2001                   
	DOCKET NUMBER:   AR2000042898

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 removal of invalid information from her Noncommissioned Officer Evaluation Report (NCOER) for the period ending June 1995 and removal of that information from her Official Military Personnel File (OMPF), from USAEREC Form 10B, and from all military records and that she be reconsidered for promotion to Sergeant First Class, E-7 by a Standby Advisory Board (STAB).  Supporting evidence is as listed on the DD Form 149.  (The U. S. Army Enlisted Records and Evaluation Center has informed the Board that the USAEREC Form 10B is no longer used.  When it was used, it was merely a courtesy information document sent to all soldiers in a zone of promotion consideration listing certain personnel data as contained in their OMPF.)

3.  The applicant states that she had/has hypothyroidism.  (Hypothyroidism is described in Dorland’s Illustrated Medical Dictionary, 26th edition as a deficiency of thyroid activity.  In adults, it is most common in women and its characteristics include a decrease in basal metabolic rate, tiredness and lethargy.)  At the time she failed the May 1995 Army Physical Fitness Test (APFT), it was not known that she had that condition.  Her thyroid problem also caused her to gain weight.  She failed the run portion of the APFT due to dehydration from trying to lose the extra weight the condition caused her to gain.  She had been starving herself and taking laxatives to help her lose weight.  She is not contesting that the APFT was improperly administered.  She only states that if her medical condition had been known at the time she would not have been allowed to take the APFT until medication had controlled the condition.  Therefore, the entry on her NCOER that she failed the APFT is unfair and unjust.

4.  The applicant’s military records show that she enlisted in the Regular Army on 21 March 1985.  She was promoted to Staff Sergeant, E-6 on 1 February 1995.

5.  On 22 May 1995, the applicant was seen by medical personnel for complaints of feeling tired, hair falling out, bones hurting, and weight gain.  It was noted that her thyroid needed to be checked.  Laboratory tests were ordered.

6.  The applicant failed the APFT on 24 May 1995.

7.  The contested NCOER is a 10-month change of rater report for the period September 1994 – June 1995.  It is the only NCOER that indicates she failed an APFT and did not meet height/weight standards.  (Several NCOERs do indicate that she either was exempt from weight control standards or she was overweight but did meet the body fat standards.)  On the six NCOERs she received as an   E-6, she was generally rated as “success” in the five categories of NCO Responsibilities in Part IV (23 “success” ratings and 6 “excellence” ratings in addition to the 1 “needs some improvement” rating on the contested report).  Her potential for promotion in Part Va was rated as “among the best” except for the “fully capable” rating she received on the contested report.  
8.  On 30 August 1995, the applicant was diagnosed with hypothyroidism.  It was noted on this date that her weight problem was due to her thyroid condition and her flag for overweight should be lifted.  She was given a temporary physical profile on 10 October 1995 prohibiting her from taking the APFT until her condition was controlled.  On this date, her doctor noted that she should “…not have taken a PT test since (sic) May as her medical condition precluded optimum performance.”

9.  On 13 November 1995, the applicant’s senior rater recommended that her NCOER for the period ending June 1995 be rewritten in light of the new information concerning her medical condition.  The NCOER apparently had been processed by this date and would not be returned for changes or rewriting.

10.  The applicant appealed the NCOER in December 1997.  On 19 January 1999, the Enlisted Special Review Board (ESRB) denied her appeal.

11.  Army Regulation 623-205 establishes the policies and procedures for the NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

12.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty.  This regulation specifies that promotion reconsideration by a STAB may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.
Reconsideration normally will be granted when one or more of several conditions existed on the performance fiche of a soldier’s OMPF at the time it was reviewed by a promotion selection board.  An adverse NCOER which was subsequently declared invalid in whole or in part and a determination was made that there was a material error is one of the listed conditions.

CONCLUSIONS:

1.  While the Board does not fault the ESRB for holding to a strict standard of proof before approving an NCOER appeal, the Board concludes that the applicant’s contentions have merit.

2.  The Board believes that had the applicant’s condition caused her only lethargy and tiredness she possibly could have passed the APFT if she had “tried harder.”  However, her hypothyroidism also caused her to gain weight.  Because doctors did not know that she had hypothyroidism at that time, she had no medical excuse for being overweight and so undertook to lose the weight.  Unfortunately, the quick weight loss efforts she took -- starving herself and taking laxatives – could only exacerbate her already weakened condition.  While such steps might seem unreasonable, they are commonplace.

3.  The Board concludes that in light of the diagnosis and medical opinion made after the applicant failed the May 1995 APFT and after the contested NCOER was prepared and signed, it would be appropriate to delete all entries and bullet comments in Part IVc of the contested NCOER.  The Board finds no problem with the potential rating of “fully capable” in Part Va.  Although it may not be consistent with other potential ratings she received on other NCOERs, it is consistent with the “success” ratings in Part IV.

4.  The Board is not fully convinced that the applicant would have been recommended for promotion to Sergeant First Class had it not been for the failed APFT entry and related entries/comments on the contested NCOER.  Her NCOER history shows that she was a “success” soldier who had received comparatively few “excellence” ratings.  However, the Board acknowledges that physical fitness, as shown by APFT results, and height/weight standards are important criteria in determining promotion potential.  Any doubts should be resolved in favor of the applicant and therefore it would be appropriate to have her corrected records reconsidered by a STAB.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  amending the applicant’s NCO-ER for the period September 1994 – June 1995 to delete all entries and bullet comments in Part IVc; and

     b.  removing the 19 January 1999 ESRB memorandum from the applicant’s performance fiche.

2.  That the applicant’s records be made available to the next scheduled Standby Advisory Board for promotion consideration to Sergeant First Class under the earliest primary zone criteria for which she was eligible and, if necessary, subsequent criteria after the above corrections are made.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rvo___  __wtm___  __tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042898	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.	131.10	
3.		
4.		
5.		
6.