MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 August 2001                   
	DOCKET NUMBER:   AR2001052128

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Ernest W. Lutz, Jr.		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:  That his date of rank to Sergeant First Class (SFC), E-7 be backdated to 1 May 1998.

APPLICANT STATES:  That he was unjustly removed from the promotion list due to an injury he sustained at the Advanced Noncommissioned Officer Course (ANCOC).

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

After having had prior service in the Army National Guard, he enlisted in the Regular Army on 1 March 1990.  He was selected for promotion to SFC by the May 1997 promotion board in primary military occupational specialty (MOS) 12B (Combat Engineer).  He was conditionally promoted to SFC effective 1 May 1998.

The applicant arrived at ANCOC Class 99-01 at Fort Leonard Wood, MO in January 1999.  On 11 January 1999, the class was taking the Army Physical Fitness Test (APFT) in a gym due to inclement weather.  The applicant was apparently tripped by another soldier while taking the 2-mile run.  He injured his knee and was carried off the track.  He was diagnosed with a medial collateral ligament (MCL) strain of his left knee.  He was placed on crutches and given a temporary profile.  He was then told that he would not be enrolled in ANCOC Class 99-01 due to his injury and being on crutches.  

A Statement of Medical Examination and Duty Status, DA Form 2173, dated     10 August 1999 indicates that the applicant was running on the street, slipped on a piece of ice and twisted his knee.

By letter dated 12 January 1999, Command Sergeant Major (CSM) B___, the Commandant of the Fort Leonard Wood Noncommissioned Officer Academy informed the applicant’s unit that the applicant was being denied enrollment in ANCOC because he failed the APFT, specifically the run event.  

By endorsement dated 12 January 1999, the applicant acknowledged that he was counseled by the Commandant on being denied enrollment in ANCOC.  He checked that he read and understood the information presented against him and he elected not to make a statement.

On 22 March 1999, the U. S. Total Army Personnel Command (PERSCOM) informed the applicant that his name was administratively removed from the promotion list due to his being denied enrollment to ANCOC due to APFT failure. His promotion orders were revoked.

The applicant appealed his removal to the NCO Education System (NCOES) Reinstatement Panel.  He provided letters of support from his chain of command and from CSM B___.  The CSM’s memorandum dated 19 May 1999 stated that the applicant was injured during the APFT through no fault of his own.  The NCOES Reinstatement Panel disapproved the applicant’s for reinstatement to SFC on 1 November 1999.

The applicant remained on a temporary profile until around 2 November 1999.  The Physical Profile form, DA Form 3349, dated 2 August 1999 authorized no regular APFT or alternate APFT.  

The applicant was again selected for promotion to SFC in MOS 12B by the June 1999 selection board.  Since he was a prior NCOES failure, he was not authorized a conditional promotion.  He would be promoted on the date he graduated from ANCOC.

In March 2000, the applicant was reclassified into primary MOS 79R (Recruiter).  It cannot be determined if this reclassification was medically required or not.  He completed 79R ANCOC on 7 September 2000.  He was promoted to SFC with a date of rank and effective date of rank of 7 September 2000.

In the processing of this case, an advisory opinion was obtained from PERSCOM Promotions Branch.  That office recommended that the applicant’s request be denied.

The applicant rebutted the advisory opinion.  He reiterated that he did not fail the APFT; it was an injury that kept him from being enrolled in ANCOC.  He believed that he was treated unjustly by being removed from the promotion list and losing over two years time in grade over an injury that was not even his fault.

The U. S. Army Physical Fitness School at Fort Benning, GA was asked for policy guidance concerning APFT failures.  The point of contact explained that their reasoning in calling an APFT failure a failure even if it appears that the failure is due to an injury or illness is because it is so difficult to determine if the injury or illness was not caused by the soldier being ill-prepared.  For example, the soldier may have collapsed because he was not in good physical condition.

The Deputy Chief of Staff for Operations, Institutional Training Division was asked for guidance concerning APFT failures.  The point of contact stated that an academy commandant has the informal authority to determine that a soldier did not complete, as opposed to failed, an APFT.  PERSCOM, NCOES Branch also stated that an academy commandant can determine that a soldier did not complete an APFT due to medical reasons and release the soldier from the course without prejudice.

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

1.  The applicant fails to adequately address the contradictory statements by CSM B___.  In January 1999, the Commandant stated the applicant failed the APFT.  The applicant did not rebut this statement; in fact, he failed to make any statement regarding his denial of enrollment.  In May 1999, the Commandant stated the applicant’s injury was sustained through no fault of his own but failed to address why he did not determine the APFT to be incomplete rather than a failure.  In the absence of such an explanation from CSM B___ the Board presumes that the determination that the applicant failed the APFT was correct and that he was properly removed from the E-7 promotion list.

2.  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

__jh____  __mhm___  __ewl___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001052128	
SUFFIX		
RECON		
DATE BOARDED	20010801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.02	
2.		
3.		
4.		
5.		
6.