PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            09 SEPTEMBER 2003                  
	DOCKET NUMBER:   AR2002081365

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas A. Pagan		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 December 2000 promotion to pay grade E-6 be restored.  He states, in effect, that he was unable to attend the Basic Noncommissioned Officer Course (BNCOC) because of knee surgery.  In support of his request he submits a copy of his February 2002 surgery report, a copy of documents placing him on convalescent leave, and a copy of his April 2002 permanent profile.

3.  Records available to the Board indicate that the applicant served on active duty as a member of the Regular Army between May 1990 and May 1998.  He was promoted to pay grade E-5 on 17 October 1997.

4.  In October 1998 the applicant enlisted in the United States Army Reserve in pay grade E-5.  In April 1999 he was ordered to active duty as a member of the AGR (Active Guard/Reserve) Program.

5.  On 15 November 2000 the United States Total Army Personnel Command in St. Louis, Missouri published orders conditionally promoting the applicant to pay grade E-6 effective 1 December 2000.  His promotion orders noted that soldiers accepting a conditional promotion who are subsequently denied enrollment, declared a no show, become an academic failure, or otherwise do not meet graduation requirements, will be reduced to the grade and rank held prior to the conditional promotion.

6.  Army Regulation 140-158 establishes the policies and provisions for the promotion of United States Army Reserve soldiers and attendance at NCO (noncommissioned officer) education courses, including BNCOC.  It states that a soldier conditionally promoted to pay grade E-6 must be enrolled in and graduate from BNCOC, or be subject to reduction.  It also states that such soldiers will be authorized a delay for enrollment in or completion of BNCOC if it can be verified that the soldier is ill or injured to a degree that prevents enrollment or course completion.  

7.  Information provided in a May 2003 advisory opinion to the Board, by the Director, Full Time Support Management Directorate in St. Louis, indicated that the applicant had been scheduled to attend BNCOC between 9 January and 
26 March 2002.  He noted that attendance orders were never published and that the applicant had informed the Full Time Support Management Directorate that he was under a temporary profile at the time the course was scheduled to commence.  As such, the Director noted that the applicant was ineligible to attend BNCOC and that he was scheduled for knee surgery in February 2002.

8.  Medical documents provided by the applicant confirm that he underwent arthroscopic knee surgery on 14 February 2002 and was initially placed on 30 days of convalescent leave effective 15 February.  His convalescent leave was subsequently extended for an additional 30 days on 15 March 2002.  He was issued a permanent physical profile (P-2) on 18 April 2002 which precluded running, jumping and impact aerobics, but which permitted him to take an alternative physical fitness test which included walking or bicycling.

9.  There is no indication that the applicant was subsequently scheduled for BNCOC and on 31 May 2002 officials at the United States Total Army Personnel Command in St. Louis issued orders revoking the applicant promotion to pay grade E-6, citing Army Regulation 140-158.

10.  The May 2003 advisory opinion recommended that the applicant’s rank of Staff Sergeant be reinstated with his December 2000 date of rank in view of his temporary profile, subsequent surgery, and convalescent leave period.  However, the opinion also noted that in October 2002 the applicant’s unit reduced him to pay grade E-4 and “gave him a Relief for Cause Noncommissioned Officer Evaluation Report for the period Oct 02 through Jan 03, for sub-standard performance.”  A copy of the Relief for Cause evaluation report was submitted along with the advisory opinion.

11.  The applicant was furnished a copy of the advisory opinion in correspondence from this agency dated 5 June 2003.  The applicant did not acknowledge the opinion or provide any comments.

12.  The January 2003 Relief for Cause evaluation report, which was provided by the Director, Full Time Support Management Directorate, was authenticated on 22 January 2003 by the applicant and members of his rating chain.  The report reflects the applicant’s grade as “SGT.”

CONCLUSIONS:

1.  The applicant’s reduction to pay grade E-5 in May 2002, after not attending his scheduled January 2002 BNCOC, was premature.  As noted in the advisory opinion, the applicant was ineligible to attend BNCOC at that time because of his temporary profile and subsequent surgery and convalescent leave period.  The applicant should have been permitted to retain his conditional promotion to pay grade E-6 and been scheduled for BNCOC once his medical problems were resolved and he received his permanent physical profile.  As such, the Board concludes, in the interest of justice and equity, that the applicant’s May 2002 reduction to pay grade E-5 should be voided and the applicant’s conditional promotion to pay grade E-6 should be reinstated with entitlement to all appropriate back pay and allowances.

2.  In conjunction with the reinstatement of the applicant’s conditional promotion, he should be scheduled to attend the BNCOC as soon as possible in accordance with the provisions of Army Regulation 140-158, provided he is otherwise eligible.

3.  It is unclear, from the evidence available to the Board, if the applicant was actually reduced from pay grade E-5 to pay grade E-4 in October 2002.  As such, the Board concludes that it would be appropriate to defer the issue of any reduction for sub-standard performance to the applicant’s chain of command.  If he was in fact reduced for sub-standard performance the command should correct the reduction action so it would be consistent with the Board’s action restoring the applicant to pay grade E-6.

4.  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:

a.  by voiding the applicant’s May 2002 reduction to pay grade E-5 resulting from failure to attend BNCOC;

b.  by restoring the applicant’s 1 December 2000 conditional promotion to pay grade E-6 with entitlement to appropriate back pay and allowances; 

c.  by scheduling the applicant for attendance at BNCOC in accordance with Army Regulation 140-158; and

d.  by deferring any subsequent reduction action for sub-standard performance to the applicant’s chain of command for resolution as appropriate based on the applicant’s restoration to pay grade E-6.

BOARD VOTE:  

__SLP __  ___WTM_  ___TAP _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell_______
		        CHAIRPERSON

INDEX

CASE ID	AR2002081365	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030909	
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.	110.00	
2.		
3.		
4.		
5.		
6.