RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 February 2004                 
	DOCKET NUMBER:   AR2003085857

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Mae M. Bullock		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that he be reinstated in the Advanced Noncommissioned Officers Course (ANCOC) and either have his promotion to sergeant first class (SFC) reinstated or be placed before a “Remedial Selection Board” for consideration for promotion to SFC.

2.  The applicant states that his disenrollment from ANCOC and subsequent removal from the SFC promotion list was unjust.  He states that he was suffering from a lower abdominal strain but was told that he had to take the physical fitness test (APFT) in order to be continued as an SFC and at ANCOC.

3.  The applicant provides copies of the ANCOC paper work, excerpts from his medical records, and copies of Army Regulation 600-8-19 (Enlisted Promotions And Reductions) page 8, and Department of the Army Pamphlet (DA PAM) 611-21 (Military Occupational Classification And Structure) page 330. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant be reinstated to the earliest available ANCOC course.  Counsel also requests that the applicant be reinstated on the SFC promotion list, be sent to a “Remedial Selection Board”, or be considered by a subsequent promotion board.

2.  Counsel states that the applicant had an injury which prevented him from passing the APFT but he was advised that failure to retake the test would result in his removal from the permanent promotion list.

3.  Counsel states that the applicant did retake the APFT against medical recommendations and failed it a second time.  The medical condition has since resolved and the applicant has passed all subsequent APFTs.  He also indicates that the notation that the applicant failed “multiple APFTs” is misleading as he only failed two, both for medical reasons.

4.  Counsel indicates that the applicant injured himself while taking the inventory APFT on 26 January 2000.  He states that the applicant received a private medical assessment that conflicted with the ANCOC staff medical advice.

5.  Further, counsel states that while the applicant was convalescing from his abdominal injury and a preexisting back condition, he received orders to again attend ANCOC but was unable to execute them due to being under medical care. Counsel states that the applicant’s command approved the applicant’s 19 July 2000 request for a seat at ANCOC, but he has not received the orders.

6.  Counsel provides no additional documentation.
CONSIDERATION OF EVIDENCE: 

1.  The applicant has been on continuous active duty since 10 November 1983.  He is currently serving in the military occupational specialty (MOS) of 79R (recruiter).  

2.  He was selected for promotion to SFC by the 1999 SFC Promotion Selection Board and was promoted on 1 January 2000 contingent upon completion of ANCOC.

3.  The applicant received orders for ANCOC and started the course on 24 January 2000.  He was disenrolled from the course on 8 February 2000 due to multiple APFT failures.

4.  With his disenrollment from ANCOC his conditional promotion to SFC was revoked and he was removed from the promotion list on 23 May 2000.

5.  On 19 July 2000 the applicant’s command approved his request for a new 79R ANCOC class date.  On 24 July 2000 his commanding officer submitted a memorandum requesting that the applicant be reconsidered for attendance at ANCOC.  He cited the reasons for the applicant’s previous removal and indicated that he believed that he was qualified for attendance at that time.  There is no documentation available showing the official response to these requests.

6.  Although the actual request is not of record, the record indicates that the applicant also requested reinstatement to SFC.  His request was reviewed by the Noncommissioned Officer Education System (NOCES) Reinstatement Panel and denied on 10 November 2000.  The Chief, Training Analysis Management Branch stated that the reasons submitted had been reviewed and that they did not warrant reinstatement or reversal of the decision.

7.  The medical records submitted by the applicant show:

•	He was seen at a civilian health clinic on 7 February 2000 for complaints of abdominal pain that had started while he was “working out at the GYM 5 days ago”.  He was diagnosed with “Soft tissue trauma with abdominal pain.”  There was also a complaint of low back pain but no abnormalities were noted.  This report was transcribed on 27 April 2000. 

•	An undated Standard Form 88 (Report of Medical Examination) shows the applicant was found to have chronic low back pain with diffuse facet arthopathy and disc bulging at L4-L5.  The examining physician did not consider him qualified for retention and recommended a medical evaluation board (MEB).  

•	On 19 May 2000 a DA Form 3349 (Physical Profile) was completed showing the applicant’s profile as P1U1L3H1E1S1.  He was given physical restrictions of no lifting over 20 pounds, no sit-ups, no rucking, road marching up to one mile, no more than 20 pushups, and that he may march up to one mile without ruck sack.  His physical fitness testing was to be limited to walking and push-ups.

•	A MEB conducted on or about 9 June 2000 found that the applicant was suffering from chronic low back pain with diffuse facet arthropathy.  The physical examination showed he has a herniated nucleus pulposis (HNP) at L4-L5 and a protruding disc at L5-S1.  It shows that he was on a P3 physical profile. 

•	The history taken at the time of the MEB states that the applicant’s back problem started 2-3 years prior with the current complaint starting in April 2000.  

•	A physical evaluation board found him physically fit for duty on 11 July 2000 within the limitations of his profile. 

•	There is no documentation of any evaluation or complaint to military medical personnel of the alleged abdominal injury or for any follow-up care, although the civilian doctor had prescribed medication and physical therapy.

8.  A review of the applicant’s record shows that he has preformed and passed modified APFTs since his disenrollment from ANCOC.

9.  Army Regulation 40-501, chapter 7, sets forth the policy and procedures for physical profiles. The basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

10.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

11.  Army Regulation 600-8-19, paragraph 1-27c(4) states that soldiers who have been reduced or removed from the promotion list as a result of failure to meet the NCOES requirements are ineligible for future conditional promotion to the same grade.

12.  Army Regulation 600-60 (Physical Performance Evaluation System), paragraph 3-1 states soldiers retained by an MMRB or found fit by the PEB may still be denied attendance or graduation from training under the NCOES if medical profile limitations preclude the soldier from completing course requirements.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel have failed to provide any documentation to support the contention that military medical personnel saw him and that their opinion differed from the private medical assessment.

2.  There is no available evidence to show that the applicant provided the ANCOC personnel any medical evidence showing he was suffering from an abdominal strain before he took the second APFT.  The report of the 7 February 2000 medical examination submitted in concert with this application was not transcribed until 27 April 2000, over two months after he was disenrolled from ANCOC.  

3.  Since the applicant did not have any type of physical profile in place at the time he failed the APFTs, the APFTs as administered were proper.  

4.  Further, since the applicant did not pass the APFTs, regulations required that he be removed from ANCOC.  The applicant was properly removed from ANCOC and reinstating him is not warranted.  

5.  With his disenrollment from ANCOC he no longer met the requirements of his conditional promotion and was properly reduced and removed from the promotion list.
6.  Therefore, directing that the applicant be either reinstated or assigned a new ANCOC seat is not warranted.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __JTM___  __MMB_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		_     Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2003085857	
SUFFIX		
RECON		
DATE BOARDED	20040226	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	118 reinstate ANCOC	
2.	129.reinstate to Promo list	
3.		
4.		
5.		
6.