MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 June 2000                   
	DOCKET NUMBER:   AR1999032749

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Curtis L. Greenway 		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:  In effect, adjustment of his date of rank for promotion to pay grade E-7 to 1 May 1996.

APPLICANT STATES:  In essence, that a body fat test administered prior to the start of Advanced Noncommissioned Officer Course (ANCOC) 79R 3-97 was just a “pre-test” and should not have been used to disqualify him from the ANCOC schooling.  He submits a packet of documents subject:  Request for Redress & Article 138, in which he requested redress through command channels.  

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

He was serving on active duty in pay grade E-6, military occupational specialty (MOS) 79R (Army Recruiter).  On 1 May 1996, he was promoted to the rank of sergeant first class (SFC), pay grade E-7.  This promotion was conditional since he had not completed ANCOC.  He was told that if he did not complete the ANCOC, the promotion would be revoked.

Subsequently in 1996, he was selected to attend ANCOC at Fort Jackson, South Carolina, Class Number 3-97, scheduled to begin on 6 January 1997.  He was initially measured for body fat compliance on 5 January 1997 at Fort Jackson.  He was assessed to be at 25.22 percent (maximum authorized percentage was 24.00 percent).  He was remeasured on 6 January and was assessed at 
24.29 percent, still above the maximum standard.  Different NCO’s conducted the measurements.  

On 10 January 1997, the commandant of the Noncommissioned Officer Academy, US Army Soldier Support Institute, Fort Jackson, notified the applicant’s commander that the applicant had failed to meet weight standards, a requirement for enrollment in the ANCOC which began on 6 January 1997.  He had been disenrolled from the course.  He also was returned to his command.  

On an unknown date (late March or early April 1997), his promotion to pay grade E-7 was revoked.  He continued to perform duties as an Army Recruiter, but at a new recruiting station (Syracuse, New York) in the 1st Recruiting Region. 

On 3 April the applicant appealed the removal through his chain of command.  He contended that the measuring procedures were improper.  Both his battalion and brigade commanders fully supported his request.  In fact, the brigade commander wrote an additional personal request to the Commanding General of the U.S. Army Soldier Support Institute at Fort Jackson on 29 April 
1997 appealing the decision to remove the applicant from the course.   

On 5 May 1997, the commander of the Institute, a brigadier general, responded that the testing procedures were correct (it was done by two different measuring teams, whose members were fully qualified in the measurement procedures prescribed by the Army).  Therefore, the disenrollment stood.  He could appeal the decision to the US Total Army Personnel Command (PERSCOM).  His brigade commander’s endorsement to the appeal stated that he continued to support the applicant and as long as he was within weight control standards, he could continue as an Army recruiter in the 1st Recruiting Brigade.
 
On 25 July 1997, the applicant submitted a second appeal of the removal from the ANCOC, in the form of a memorandum, Subject:  Complaint of Wrong (Article 138) to the commandant of the school.  He essentially claimed he was wronged by the denial of his enrollment in the ANCOC on 6 January 1997.  He noted the more than “one” percent difference between the two tapings, yet less than
2 weeks before (he submits a taping done by his command on 17 December 1996) he was within standards (21.16 percent).  Also he claimed that the second testing was improperly done, and that the commandant of the school could have waived the disenrollment for up to 30 days in accordance with paragraph 20d, Army Regulation 600-9 (The Army Weight Control Program).  He asked that he be permitted to attend the next ANCOC.  He states that his submission was not within the normal 90-day suspense because the applicant was moving between duty stations.

His chain of command continued to support his request for reinstatement.  

The request was responded to by the major general commander of the US Army Training Center and Fort Jackson on 12 November 1997.  His claim was denied.  Essentially, it did not meet the timeliness requirement of Article 138 of the Uniform Code of Military Justice, (submitted on 25 July 1997, and received by the commanding general’s legal advisor on 29 September 1997).  Secondly, the “wronged complained of was not made by your commanding officer” as required in Army Regulation 27-10.  The commandant of the school (a command sergeant major), did not have UCMJ jurisdiction over the applicant.  Therefore, the commandant was not considered a commander for Article 138 purposes, at the time of the incident.  

On 6 November 1997, the applicant submitted an Inspector General (IG) Action Request to the US Army Training and Doctrine Command (TRADOC).  That official responded on 12 November 1997, that he had been properly tested by two different, trained measuring teams.  Therefore, in essence, the testing procedures were validated and the test results were considered accurate.    Secondly, the regulatory quote given by the applicant concerning waiver of disenrollment for up to 30 days was in error.  Army Regulation 600-9 had been updated on 4 March 1994, and now stated that every student was required to pass the Army Physical Fitness Test (APFT) and the height and weight requirements in Army Regulation 600-9 before they could be enrolled in a professional school.  Therefore, since he failed to pass the entrance requirement in effect at the time he reported for the school, the IG could not substantiate the applicant’s allegations.  

The applicant’s records do not substantiate when or if he was permitted to attend the ANCOC between 1997 and 1999, but he was again promoted to the rank of SFC effective 1 October 1999. If he had not attended, then his promotion again was conditional on completion of the ANCOC.  

The applicant’s request was referred to the PERSCOM for an advisory opinion.  The Chief, Promotions Branch responded (COPY ATTACHED) which essentially confirmed the promotion action and revocation of his promotion in 1997.  The Chief, Noncommissioned Officer Education System (NCOES), Section, Enlisted Personnel Management Directorate, responded (COPY ATTACHED) that the applicant had been twice measured and found not to meet the weight standards to attend the ANCOC.  He was properly disenrolled and his conditional promotion was revoked.  The opinion went on to state that the applicant had requested reinstatement to the program, which had been denied by a general officer at the PERSCOM on or about 28 October 1998. Therefore, the PERSCOM recommended denial of the applicant’s request.

These opinions were referred to the applicant for his review and/or rebuttal.  However, he failed to respond.

Army Regulation 600-8-19 (Enlisted Promotions and Reductions), at paragraph 4-2, specifies that in order for a soldier to be promoted to the rank of SFC, he/she must be a graduate of an ANCOC.  However, conditional promotions may be made in selected cases, subject to completion of the course.  If the soldier is disenrolled from the course, the promotion action will be revoked.

Army Regulation 600-9, at paragraph 20d, which was updated on 4 March 1994, in pertinent part, specifies that any soldier who is scheduled to attend a professional school, must have passed the APFT and be within the appropriate height/weight requirements before they attend the school.  

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The evidence of record shows that the applicant was not within the height/weight requirements of Army Regulation 600-9 at the time he was scheduled to attend the ANCOC in January 1997.

3.  While the Board notes the differences in the measurements taken in December 1996 and January 1997, the Board is satisfied that the applicant was properly measured in January 1997 and failed to meet the standards to attend the course.  He has established no basis or requirement that officials at Fort Jackson should have conducted a third measurement.  The individuals doing the measurements at Fort Jackson were fully qualified to conduct the testing.  Therefore, he was properly disenrolled from the ANCOC on 6 January 1997.  

4.  Since he did not complete the appropriately scheduled ANCOC, the revocation of his promotion order to pay grade E-7 in March 1997 was likewise proper.  

5.  The applicant exhausted his administrative remedies to appeal the disenrollment, and the Board can find no error or injustice in the actions taken by the officials at Fort Jackson and concurs with the decision of the Inspector General at the TRADOC.

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__  ___wtm__  __clg____  DENY APPLICATION

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

INDEX

CASE ID	AR1999032749	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	131.04	
2.	131.02	
3.		
4.		
5.		
6.