PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:          06 NOVEMBER 2003                    
	DOCKET NUMBER:  AR2003088494

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Raymond J. Wagner		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)

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 that his 1 February 1999 promotion to sergeant first class (SFC), pay grade E-7, be restored, with all back pay and allowances, and that his records be referred to a standby advisory board for consideration for promotion to master sergeant. 

3.  The applicant states that his removal from the Noncommissioned Officer Education System (NCOES) Advanced NCO Course (ANCOC) selection and his conditional promotion to SFC, resulting in his reduction in rank on 24 October 2001 was unjust.  There were extenuating circumstances – primarily a weight control flag initiated in October 2001 and subsequently stricken from his record as an erroneous action in May 2002, and the denial of his appeal by the NCOES reinstatement panel in August 2002. 

4.  He states that the sole reason for his reduction and removal from the NCOES selection list was a flag for being overweight, which was permanently stricken from his record as being erroneous.  In effect, his removal from the NCOES selection list and his reduction in rank was based on an erroneous action.  It would seem logical that he should have been returned to his original state; however, his appeal to the NCOES reinstatement panel was denied.  On              1 September 2002 he was again promoted to sergeant first class.  He has attended ANCOC and received superior ratings.  

5.  The applicant's counsel, a Judge Advocate General's Corps officer in the Office of the Staff Judge Advocate at Redstone Arsenal, Alabama, provides a memorandum supporting the applicant's position.  He stated that the applicant's commanding officer on 13 May 2002 requested that the flag be permanently stricken from the applicant's record as an erroneous action because of medical reasons.  The battalion command sergeant major verified that the flag was permanently stricken from EDAS ((Enlisted Distribution and Assignment System). Consequently, the practical effect is that it was as though the flag never existed.  This erroneous flag was the sole basis that the applicant was reduced and removed from the ANCOC selection list.

6.  That officer continued by stating that members of the applicant's chain of command tried repeatedly to have the applicant reinstated to the ANCOC selection list, but were told the only means to do so was to submit a reinstatement packet.  The reinstatement panel denied the applicant's appeal on 7 August 2002 without providing any explanation therein.  The applicant was immediately selected again for promotion on 1 September 2002, the promotion indicative of his impressive record.  The applicant has completed ANCOC, is respected as a subject-matter expert by fellow EOD (Explosive Ordnance Disposal) professionals, is an airborne and air assault qualified ranger, and a master EOD technician.  The applicant epitomizes the finest qualities that the Army needs in its senior NCO ranks.

7.  The applicant provides a photograph of himself, a copy of the 13 August 2002 Total Army Personnel Command (PERSCOM) memorandum denying his request for reinstatement, copies of his service school academic evaluation reports for ANCOC, a copy of his NCO evaluation report for the period ending in December 2002, a copy of his personnel qualification record, a copy of the order promoting him to sergeant first class effective on 1 September 2002, and a copy of the order promoting him to that rank effective on 1 February 1999.  He provides a copy of his NCOES reinstatement appeal packet, the applicable contents of which are depicted herein.

8.  The applicant enlisted in the Army for three years on 17 May 1988 and has remained on continuous active duty.  His assignments include tours of duty at Fort Leonard Wood, Missouri, Fort Ord, California, Redstone Arsenal, Alabama, Eglin Air Force Base, Florida, Fort Stewart, Georgia; in Panama, Saudi Arabia, and Korea.  He has attended and completed numerous courses – air assault, airborne, ranger, and EOD, to include Air Force and Navy courses.  He has received multiple awards of the Army Commendation Medal, Army Achievement Medal, and the Army Good Conduct Medal.  He has been awarded the Meritorious Service Medal and the Air Force Achievement Medal.  He has also been awarded the Master EOD Badge.  The applicant's NCO evaluation reports, from his first report beginning in January 1991 through his latest report ending in December 2002, are consistent, in that his rating officials considered him to be an outstanding Soldier.  All the reports show that he met the height and weight standards prescribed by regulation.

9.  On 13 January 1999 the applicant was conditionally promoted to sergeant first class.  His promotion was contingent upon completion of ANCOC.  The order effecting the promotion indicated that the conditional promotion would be revoked and his name removed from the centralized promotion if he failed to complete ANCOC.

10.  A DA Form 5500-R (Body Fat Content Worksheet), dated 1 December 2000, shows that the applicant's percentage of body fat was within the standards prescribed by regulation.

11.  A 2 October 2001 Body Fat Content Worksheet shows that the applicant did not meet the body fat percentage required by regulation.  On 10 October 2001 the applicant was flagged effective on 2 October 2001.

12.  On 12 October 2001 the applicant took the Army Physical Fitness Test (APFT), passing each element of the test (push-up, sit-up, and two mile run); however, his scores were considerably lower than his scores on his previous three tests.  This test indicated that he did not meet the body fat percentage required by regulation.       

13.  On 16 October 2001 the PERSCOM Training Division recommended to the Enlisted Promotion Branch that the applicant's promotion orders to sergeant first class be revoked and that he be removed from the promotion list.  The Training Division Sergeant Major stated that the applicant was not eligible to attend his scheduled ANCOC due to being flagged for failure to meet height and weight standards.  On 24 October 2001 orders were published revoking his promotion to sergeant first class, and administratively removing him from the SFC promotion list.  The applicant was granted defacto status for the period 1 February 1999 through 21 October 2001.

14.  On 9 November 2001 the applicant appealed to the PERSCOM Reinstatement Panel, stating that prior to notification of entry into the weight control program, he was flagged on 2 October 2001, but not notified until           10 October 2001.  The pathological medical evaluation was not conducted until 18 October 2001.  He stated that his hernia surgery and recovery combined with his physical inability to conduct a rigorous fitness regimen, though not a pathological or associated disease process or condition, was a medical condition that resulted in his weight gain.  He stated that prior to his hernia repair surgery and throughout his recovery, he adjusted his caloric intake based on his inability to conduct a substantial fitness regime.  He stated that he provided documentation from his surgeon, who stated that a full recovery takes between 12 and 18 months.  He provided a copy of a chronological sequence of events outlining his case. 

15.  The sequence of events that he provided purports to show the reasons for his non-attendance at ANCOC, both scheduled classes, and classes conducted while he was stationed in Korea.  His non-attendance because of an upper respiratory infection/strain muscle to his chest in January/February 1999, his laceration to his left hand resulting in a temporary profile in April/May 2000, and his injury to his right hand resulting in temporary profiles from September 2000 to January 2001 are documented in the medical records that he submits with his request. 

16.  Numerous Soldiers, both officers and senior NCOs, appealed to the Reinstatement Panel on behalf of the applicant.  

17.  A 14 December 2001 Body Fat Content Worksheet shows that the applicant was under the body fat percentage required by regulation.   On 14 December 2001 the flag was removed.

18.  In a 13 May 2002 memorandum, the applicant's commanding officer requested that the weight control flag initiated on the applicant for the period       2 October 2001 to 14 December 2001 be permanently stricken from his record as an erroneous action based on medical reasons.  He stated that the request was based on a comprehensive review and evaluation of the entire process, and medical information provided by the applicant's surgeon.

19.  On 13 May 2002 the applicant's surgeon stated that the applicant had gone on sick call on 28 February 2001, experiencing pain in his groin area.  He initially evaluated him on 21 March 2001 and diagnosed him with an inguinal hernia and scheduled surgery for 13 April 2001.  His hernia was surgically repaired.  The applicant was placed on convalescent leave and a restrictive profile to enable the hernia repair an opportunity to begin the healing process.  He stated that full recovery from inguinal hernia repair surgery barring any complications can take 12-18 months.  He stated that after reviewing the applicant's December 2000 body fat content worksheet and his height and weight data dating back to February 1999, evaluation reports, and related medical documentation, he believed that his weight gain of approximately 18 pounds was directly related to his hernia, the repair surgery, and his physical inability to conduct a rigorous fitness regime from December 2000 through October 2001.  He stated that six months is not long enough for his injury to properly heal.  The applicant took the APFT required to attend ANCOC on 12 October 2001, straining his hernia; however, continuing the test and achieving a passing score.  On 16 October 2001 the applicant was diagnosed with an inguinal hernia strain and placed on a restrictive profile.  He stated that the medical evaluation required by Army Regulation 600-9 for weight control only looks for a pathological reason or limitation for weight gain.  The limited physical activity due to his injury, profile and recovery would not have shown up as a pathological medical limitation or explanation for weight gain.   

20.  On 11 June 2002 the applicant again appealed to the PERSCOM NCOES Reinstatement Panel, stating that the weight control flag was inadvertently faxed to the NCOES branch on 15 October 2001.  His profile was sent to the NCOES branch on 17 October 2001.  In all actuality he would not have attended ANCOC in October 2001 because of his injury and subsequent profile as opposed to a weight control flag.  He reiterated that the flag had been stricken from his record as erroneous, and therefore, it would seem logical that he should have been restored to his original status.

21.  With his appeal [to the reinstatement panel] he submitted statements of support from his company commander (the same officer who flagged him), battalion commander, and the Ordnance Missile and Munitions Center and School Commandant.  All indicated that his hernia injury and subsequent physical limitations contributed to his weight gain.  All stated that the applicant was an outstanding soldier.
22.  In a 28 June 2002 letter to the PERSCOM NCOES Reinstatement Panel, the applicant's counsel requested that the applicant be reinstated to sergeant first class, providing much of the same arguments previously voiced. 

23.  On 13 August 2002 PERSCOM notified the applicant's commanding officer that his request for reinstatement to sergeant first class was disapproved. 

24.  The applicant was conditionally promoted to sergeant first class effective on 1 September 2002.

25.  On 23 October 2002 the applicant completed Phase I of the ANCOC.  On     6 November 2002 he completed Phase II.

26.  Army Regulation 600-9 states in pertinent part that Soldiers exceeding body fat standards will be provided weight reduction counseling by health care personnel, entered in a weight control program by unit commanders, and flagged by the unit commander.  Enrollment in a weight control program starts on the day that the Soldier is informed by the unit commander that he has been entered in a weight control program.  A medical evaluation will be accomplished by health care personnel when the Soldier has a medical limitation or when requested by the unit commander.

27.  On 4 February 2003 the Master Sergeant Selection Board convened to consider sergeants first class with a date of rank of 31 July 1999 or earlier for promotion to master sergeant.  The board recessed on 27 February 2003.  The board results have been published and promotions have been and are being made from the recommended list.

CONCLUSIONS:

1.  On 2 October 2001 the applicant exceeded the body fat standards required by regulation and was flagged.  The flag was transmitted to PERSCOM.  Orders were published revoking his promotion and he was removed from the promotion list.  The actions were proper and in accordance with regulatory guidance.   

2.  The applicant is an outstanding Soldier as his record indicates and as shown by the numerous affirmations of support included with his application.  There is no evidence to show that he has ever been overweight.  His evaluation reports show that he has always been in compliance with the Army weight control standards.  He took the APFT in October 2001 and passed it despite recovering from his hernia operation.  His scores on that test clearly show that he had 

difficulty, as compared with his previous test scores.  A few days after the test, he was placed on profile because he had strained his hernia taking the test.  The applicant's surgeon attests that his weight gain was directly related to his hernia, the operation, and his physical inability to pursue a rigorous physical training program.  Three months after he was flagged, he met the weight standards and the flag was removed.  The evidence suggests that the actions taken were in haste, and while accurate, were unfair.  Appropriate discretion was not exercised. The applicant may not have been properly served in this matter.       

3.  Months after initiating the flag, the applicant's commanding officer realized that he had erred, and requested that the flag be permanently stricken from the applicant's record.  That information, nor the applicant's appeal, his counsel's statement, letters of support on his behalf, his surgeon's assessment, nor the applicant's record, made an impression of the PERSCOM reinstatement board.  The board denied his request without comment.  

4.  The applicant has since been promoted to sergeant first class and has completed ANCOC, attesting to the continued insistence of the Army of his outstanding soldierly qualities, performance, and potential.   

5.  The Board believes that whereas the applicant was properly flagged and his promotion orders properly revoked in October 2001, the applicant, as a matter of equity, should be reinstated to sergeant first class.

6.  Therefore, the applicant's record should be corrected to show that he was promoted to sergeant first class effective on 1 February 1999.  He should receive all appropriate back pay and allowances. 

7.  Furthermore, the applicant's records should be referred to a standby advisory board for consideration for promotion to master sergeant under the criteria established by the CY 2003 Master Sergeant Selection Board.

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

RECOMMENDATION:

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

	a.  showing that the applicant was promoted to sergeant first class effective and with a date of rank of 1 February 1999; and

	b.  submitting his records to a standby advisory board for consideration for promotion to master sergeant under the criteria established by the CY 2003 Master Sergeant Selection Board.

BOARD VOTE:  

__SK ___  __RJW__  __MMB __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Stanley Kelley________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088494	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031106	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.