PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 November 2000                  
	DOCKET NUMBER:   AR2000044857

	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	
	Mr. Gerald E. Vandenberg		Analyst	

The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Roger Able		Member	
	Mr. Thomas E. O'Shaughnessy		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 reconsideration of his application to correct his records by reinstating him to his former rank of sergeant first class (SFC) with retroactive pay and benefits and showing that he retired in pay grade of E-7.  He also requests that the Secretary direct that the Department of Army Inspector General’s office investigate the actions of his former unit in light of the findings of the 13th Corps Support Command (13th COSCOM), Fort Hood, Texas, Inspector General’s report.

3.  The applicant states that he was improperly removed from the Army Noncommissioned Officer Course (ANCOC) attendance list.  The applicant states that not only was he on profile and had a Military Occupational Specialty Medical Retention Board (MMRB) pending, but that his command could not afford to release him due to mission requirements.  His attendance at ANCOC should have been deferred, not cancelled, and certainly not in a manner indicating that he failed the course. 

4.  The Memorandum of Consideration reflecting the 3 June 1998 Board review (docket number AC98-06617) of the applicant’s request is incorporated herein by reference as if wholly set forth.

5.  The applicant submits a copy of a 13th COSCOM’s 1997 Inspector General’s (IG) report of the findings of his request for reinstatement.  This report concludes that the actions of the unit’s first sergeant, Master Sergeant (MSG) I____, were hasty and improper.  The report states that MSG I_____ not only improperly flagged the applicant, but that she bypassed her chain of command by contacting Total Army Personnel Command (PERSCOM) directly.  It concluded that the applicant should have been deferred pending the results of the MMRB.  It also concluded that the applicant’s revocation of promotion was based solely on the improper actions of MSG I____ and should not have occurred. 

6.  The IG report was not previously available to the Board, constitutes new evidence that requires Board review.

7.  The applicant’s records show that in April 1994 he was placed on a P3 profile due to a foot problem.  In 1995 he was selected for promotion to SFC (E-7), and was conditionally promoted effective 1 September 1995.  On 5 January 1996 the applicant was notified that he was scheduled to attend the 3 March 1996 ANCOC.  His command requested a deferment of his ANCOC attendance due to mission requirements and the applicant’s need for foot surgery.  The applicant was scheduled for an MMRB on 13 February 1996, which was not finalized until after the start date of ANCOC.  However, the unit’s first sergeant proceeded with the required body fat determination.  Upon finding that the applicant did not meet the required body fat requirements the first sergeant directly notified PERSCOM that he was ineligible for ANCOC.  Based upon this notification PERSCOM removed the applicant from the school attendance list and revoked his promotion.  The MMRB determined the applicant should be retained in his primary MOS and continued in service.  Based upon information forwarded to PERCOM showing that the applicant failed to complete ANCOC, due to failure to meet weight standards, and the loss of his conditional rank, the applicant was retired on 1 July 1998 as he had reached his retention control point. 

8.  The Physical Performance Evaluation System (Army Regulation 600-60) provides the regulations for the evaluation of personel with permanent medical conditions and sets forth the guidelines for MMRB reviews.  In pertinent part, it states that soldiers with medical conditions or profiles that may result in non-completion of the course of training will not attend such courses until they appear before an MMRB and the MMRB process is completed.

9.  Deputy Chief of Staff for Operations and Plans, Training Directorate (DAMO-TR) message, dated 081650Z March 95, states that soldiers with P3/P4 profiles who have been before a medical screening board, awarded medical limitations and allowed to retain their MOS will be eligible to attend appropriate courses.

10.  Army Regulation 600-8-19, paragraph 4-7c (3), states that soldiers who fail to complete the required course for bonafide medical or compassionate reasons will not have their promotions revoked.  However, those promotions remain conditional until completion of the required course.

CONCLUSIONS:

1.  The Board does not normally investigate or require that an investigation be undertaken.  Applicants to this Board bear the responsibility to demonstrate, by evidence, that an error or injustice has occurred.

2.  The Board finds that the applicant was improperly precluded from attending ANCOC.  While he might not have met the weight requirements for ANCOC, the regulations require that a soldier be deferred, not dropped, from the course pending a final review by the MMRB if he/she has a P3 profile. 

3.  The applicant’s revocation of promotion was improper.  The MMRB determined that the applicant should be retained in his primary MOS.  With this finding the applicant should have been reassigned for attendance at the next available ANCOC course. 

4.  The Board concludes that, except for the improper actions that resulted in the applicant being erroneously considered to be an ANCOC failure, the applicant would have been permitted to attend and complete ANCOC and have his promotion made permanent.

5.  Therefore, the Board concludes that it would be in the interest of justice to restore the applicant to the rank of sergeant first class, pay grade E-7, as of the date of his reduction and to show that he retired in that rank and grade.

6.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected;

a.  by restoring the individual concerned to the the rank and grade of sergeant first class, E-7, effective 11 March 1996, with retroactive pay and benefits; and,

b.  by showing that he was retired in the rank and grade of sergeant first class, E-7, effective 1 July 1998.

BOARD VOTE:  

__TAP___  ___RWA  __TEO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_    Thomas A. Pagan_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044857	
SUFFIX		
RECON		
DATE BOARDED	20001121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	129.05	
3.	129.06	
4.		
5.		
6.