MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 October 2001
	DOCKET NUMBER:   AR2001058226

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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:  Reinstatement to the pay grade of E-7 and removal of all inaccurate and erroneous adverse information from his Official Military Personnel File (OMPF). 

APPLICANT STATES:  In effect, that he was erroneously removed from the E-7 Promotion Standing List on 20 August 1998 due to being enrolled in the Army Weight Control Program.  However, he was improperly enrolled in that program without being given a medical examination to determine that his medical condition was the cause of his condition.  He goes on to state that it has since been determined that such was the case and that he has been reinstated to the E-7 list; however, he cannot be promoted until such time as he completed the Advanced Noncommissioned Officer Course (ANCOC).  He further states that had his command followed the proper procedures, he would have been promoted to the pay grade of E-7 conditionally and that once it was determined that his overweight condition was the result of a medical condition, he would have been allowed to retain his promotion until he could attend the ANCOC.  However, he now has to serve in the pay grade of E-6 until such time as he completes the ANCOC.  He also states that the improper actions by his command have caused damage to his professional, personal and family life and contends that all actions should be removed from his records and that he be allowed to serve in the rank that he earned, with entitlement to all back date of rank, pay and entitlements. 

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

He enlisted on 24 February 1987 for a period of 4 years, airborne and ground surveillance systems operator training.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 21 June 1994.

On 9 October 1997, orders were published which announced the conditional promotion of the applicant, effective 1 November 1997.  The orders specified that the promotion was conditional on completion of ANCOC requirements and that the promotion would be revoked if individuals failed to meet those requirements.

On 4 December 1998, the Total Army Personnel Command (PERSCOM) revoked the applicant’s promotion and removed him from the promotion standing list due to his being on the overweight program and because he was cancelled from ANCOC #98-006, for failure to meet weight control standards.  He was granted De Facto status for the period of 7 November 1997 to 19 August 1998.

On 10 February 1999, the Department of the Army Noncommissioned Officer Education System (NCOES) Reinstatement Panel disapproved the applicant’s request for reinstatement to the E-7 Promotion List.

The applicant applied to this Board on 9 November 1999 requesting reinstatement to the promotion list.  At that time he indicated that he was scheduled to undergo surgery to correct his medical condition.  During the processing of the applicant’s case, a medical advisory opinion was obtained which opined that the medical diagnoses of the applicant’s condition was sufficient to explain the applicant’s overweight condition.  However, because the applicant had not exhausted his administrative remedies, the Board advised the applicant that once he had completed his medical procedures, exhausted his administrative remedies, completed the ANCOC, and requested reinstatement from the PERSCOM, he could re-apply to the Board.

On 17 November 1999, the PERSCOM notified the applicant that he had been removed from the Drill Sergeant Program due to his being enrolled in the overweight program for the second time within 1 year and his revocation of his promotion to the pay grade of E-7.  

On 6 September 2000, the applicant was reinstated to the Promotion Selected List by the NCOES Reinstatement Panel with the condition that he attend and complete ANCOC before he would be promoted.

A review of the applicant’s evaluation reports shows that the applicant failed to meet weight control standards in 1991, 1997 and 1999.  A review of his performance and service fiche fails to show any derogatory documents.  All documents related to his removal from the promotion list and application to this Board are contained in his restricted fiche.

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.  While the applicant may not agree with the PERSCOM decision to delay his promotion until he completes the ANCOC, given the circumstances in this case and the applicant’s history of weight problems, the Board is inclined to agree with the decision not to promote him again until he completes the conditional requirements.

2.  Therefore, the Board stands by it’s previous directions to the applicant which informed the applicant that he could re-apply to this Board once he had completed the ANCOC and failed to receive retroactive promotion with all back pay and allowances (minus the De facto period) from the PERSCOM.  

3.  The Board has considered the applicant’s request to remove derogatory information from his records.  However, the applicant has failed to specify which documents he desires to be removed and has failed to provide evidence to support removal of such documents.  Inasmuch as the Army has a reason for maintaining records of circumstances such as the applicant’s and he has failed to show they are in error, there is no basis to grant his request at this time.

4.  The applicant’s contention that his commander erroneously removed him from the promotion list because of his being in the weight control program appears to be without merit.  The PERSCOM was the approving authority for the applicant’s removal from the promotion list and that action was based not only because he was in the weight control program but also because he was a no-show for ANCOC.

5.  The commander did not have to request a medical evaluation to enter the applicant into the weight control program unless he had reason to believe that there might be some underlying medical reason associated with the weight gain. While this assistance is available, it is not required.  Although the applicant was subsequently determined to have a medical condition that caused his weight problems, he still has not completed the conditional requirement for promotion and the Board is not inclined to direct that he again be promoted when the circumstances that caused his original removal/promotion revocation has not been resolved. 

6.  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

__mdm__  ___jhl ___  __jm____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058226	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/PROM TO E7	
2.		
3.		
4.		
5.		
6.