IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220002403 APPLICANT REQUESTS: a. The spouse (applicant) of the deceased Former Service Member (FSM) requests to posthumously promote the FSM to sergeant first class (SFC)/E-7, effective 1 March 1998. b. Personal Board appearance via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage License, 23 March 1987 * Memorandum – Subject: Memorandum of Welcome, 21 October 1997 * Memorandum of Counseling, 7 February 1998 * DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), 7 February 1998 * Orders Number 043-27, 13 February 1998 * Orders Number 58-15, 27 February 1998 * Senior Noncommissioned Officer (NCO) By-Name Promotions List for March 1998 * DA Form 4856 (General Counseling Form), 1 March 1998 * DA Form 4856, 4 March 1998 * Memorandum – Subject: Request for Investigation, 7 March 1998 * Memorandum – Subject: Administrative Removal from the Promotion Selection List, 27 April 1998 * Endorsement – Subject: Administrative Removal from the Promotion Selection List, 1 May 1998 * DA Form 638 (Recommendation for Award), 16 November 1999 * DA Form 2166-8 (NCO Evaluation Report) period covered January 2003 to August 2003 * Department of Veterans Affairs (VA) Rating Decision, 18 November 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 November 2003 * State of Certificate of Death, 11 May 2016 * Congressional correspondence FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She requests the FSM be promoted to the rank of SFC/E-7 posthumously, effective 1 March 1998. The FSM was aware of what his body fat percentage had to be when he arrived at Fort Sam Houston, TX, for the Advanced Noncommissioned Officers Course (ANCOC). The FSM also knew that if he did not meet the body fat standards that he would be sent back to his unit, and he would be removed from the SFC promotion list. The FSM never failed his body fat percentage. The FSM was a stellar Soldier, and he would never allow his military career to be in jeopardy. b. In May and December 1998 and in February 1999, the FSM and the applicant questioned the chain of command about the investigation that was submitted with regards to the FSM being removed from the SFC list as well as ANCOC. They were told each time that the information was submitted, and that they needed to let it ride and not make waves. They were told if they did not it could result in the FSM being dismissed from the Army for not being in compliance with Army Regulation (AR) 600-9 (The Army Body Composition Program). c. The FSM had attended the U.S. Army Master Fitness Instructor course in 1995. The Master Fitness Training course trains selected NCOs and commissioned officers in all aspects of the Army's Physical Readiness Training System, so they can be unit advisors on physical readiness issues and monitor the unit and individual physical readiness program. d. Prior to their Permanent Change of Station (PCS) from the Recruiting Command, the FSM asked his chain of command one last time if an answer was received about his investigation. He was told to let it go. The FSM signed in with his new unit at Fort Hood, TX; the base was pending a deployment to Iraq with the Army implementing the "stop loss" directive; and there was no time for and no help from his current chain of command to inquire about the FSM's investigation. Stop loss was then lifted, and the FSM was retired out of the military and he soon passed away due to medical conditions that were related to his digestive system, which was the reason he had to start being taped after all. His intent prior to his death was to go back to the ABCMR with all of this information and request that he be given back the rank of SFC that he worked so hard for and deserved. e. The applicant is his wife and doing that now. Tape tests in the applicant's opinion are subjective and the FSM should not have been dismissed from ANCOC and removed from the SFC list on which he was promoted then removed without ANCOC doing another tape test. Anyone can make mistakes, and the applicant is requesting this mistake to be rectified. 3. A review of the FSM's official military records show the following: a. On 16 August 1983, the FSM enlisted in the Regular Army. b. On 13 February 1998, the U.S. Total Army Personnel Command (PERSCOM), Alexandria, Virginia, published Orders Number 043-27 promoting the FSM to SFC/E-7, effective on with a date of rank of 1 March 1998. Special instructions state those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement. c. On 27 February 1998, PERSCOM published Orders Number 58-15, revoking Orders Number 043-27, pertaining to the FSM's promotion to SFC/E7. d. On or about 27 April 1998, PERSCOM notified the FSM by memorandum that he had been administratively removed from the promotion list based on his denied enrollment in ANCOC due to his failure to meet the height/weight and body fat composition standards of AR 600-9. e. On 30 November 2003, the FSM was retired by reason of sufficient service for retirement. His DD Form 214 shows he completed 20 years, 3 months, and 15 days net active service this period. 4. The applicant provides: a. Bell County, Marriage License that shows she married the FSM on 27 March 1987. b. Army Medical Department Noncommissioned Officer Academy memorandum dated 21 October 1997, congratulating the FSM on his selection to attend ANCOC. The memorandum also shows four enclosures. c. U.S. Army Great Lakes Recruiting Battalion memorandum of counseling dated 7 February 1998, wherein the FSM was counseled by the Battalion Command Sergeant Major that attendance and graduation was required to retain his rank of SFC/E-7 and he was scheduled to attend ANCOC from 1 March through 10 April 1998. The FSM was further counseled that he was responsible for maintaining the Army body composition standards outlined in AR 600-9. The memorandum shows a height of 69 inches, weight 202 pounds, current body fat of 23 percent and a maximum body fat allowed of 24 percent at the time of counseling. d. DA Form 705 dated 7 February 1998, showing the FSM passed the Army Physical Fitness Test and was not in compliance with Army body composition standards. However, his current body fat percentage was 23 percent, and he was allowed a maximum 24 percent body fat. e. Senior NCO by name promotions for March 1998 showing the FSM’s name on the list. f. DA Forms 4856 dated 1 and 4 March 1998 that show the FSM was counseled by ANCOC cadre for taping over his maximum body fat standards and being denied enrollment to his ANCOC class. His body fat percentage at the time of taping at ANCOC was 26 percent. g. Pontiac Recruiting Company memorandum dated 7 March 1998, showing the FSM's immediate commander submitted a memorandum to the Great Lakes Recruiting Battalion Commander and requested an investigation into the circumstances surrounding the FSM's denied enrollment at ANCOC. In his memorandum, the commander noted that FSM has been taped in January, February, and March 1998; in each instance, he was found to be in compliance with AR 600-9. h. DA Form 638 dated 16 November 1999, recommending the FSM for an Army Commendation Medal. i. DA Form 2166-8 covering the period of January 2003 to August 2003, wherein it shows the FSM received excellence, success, and among the best ratings and was a "must select for promotion to SFC." j. VA rating decision dated 18 November 2003 that shows the FSM's service- connected disability ratings. k. Certificate of Death showing the FSM's date of death as 11 May 2016. l. Congressional correspondence showing the applicant requested assistance from her Congressional representative with obtaining a status of this case. 5. On 5 October 2022, the Chief, Military Personnel Enlisted Division, Office of the Deputy Chief of Staff, G-1, provided an advisory opinion for this case and recommended disapproval of the applicant's request. The advisory official states: a. The FSM received a welcome notification dated 21 October 1997, which informed him that he had been scheduled to attend ANCOC at the Army Medical Department Noncommissioned Officer (NCO) Academy, Fort Sam Houston, TX. b. The FSM received a memorandum of counseling on 7 February 1998, from his battalion Command Sergeant Major, wherein he was counseled that he was scheduled to attend ANCOC from 1 March through 10 April 1998. The FSM was further counseled that he was responsible for maintaining the Army body composition standards outlined in AR 600-9. It was noted that as of that date, he was in compliance with the body fat standards of AR 600-9; specifically, his allowed body fat percentage was 24 percent, and his recorded body fat percentage was 23 percent. c. The FSM received promotion orders on 13 February 1998, which announced his promotion to SFC, effective 1 March 1998. These orders contain the following administrative instructions: Promotion is not valid and will be revoked if the Soldier concerned is not in a promotable status on the effective date of promotion. Soldiers who are promoted automatically incur a 2-year service obligation prior to voluntary non- disability retirement. The authority for this promotion is AR 600-8-19 (Enlisted Promotions and Reductions), Paragraph 4-7 and all Army Activity (ALARACT) Message Number 071700Z OCT 93, subject: Linkage of NCOES to Promotion (Active Component) - ANCOC and U.S. Army Sergeant Major Course (USASMC). Special Instructions: staff sergeant (SSG) promoted to SFC who do not have ANCOC credit are promoted conditionally. Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement. d. The FSM's promotion orders were revoked on 27 February 1998. The FSM received counseling memoranda on 1 March and 4 March 1998, from NCO Academy cadre and leadership, wherein he was notified that a recommendation would be made that he be denied enrollment from ANCOC, due to his failure to arrive in compliance with the Army height and weight standards stipulated in AR 600-9. It is noted that his allowed body fat percentage was 24 percent, and his recorded body fat percentage was 24.26 percent. e. The FSM's unit commander submitted a memorandum on 7 March 1998 to the Great Lakes Recruiting Battalion Commander, wherein he requested an investigation into the circumstances surrounding the FSM's denied enrollment at ANCOC. In his memorandum, the commander noted that FSM had been taped in January, February, and March 1998; in each instance, he was found to be in compliance with AR 600-9. The FSM was denied enrollment in ANCOC; however, his official military personnel file (OMPF) does not contain a DA Form 1059 (Service School Academic Evaluation Report) that documents his release. f. The FSM was notified by memorandum in May 1998, from the Chief, Enlisted Promotions, U.S. Total Army Personnel Command, that his name was being administratively removed from the SFC Promotion and ANCOC Selection List, based on his denied enrollment to ANCOC due to his failure to meet the height and weight and body fat composition standards of AR 600-9. The FSM was honorably retired on 30 November 2003, in accordance with AR 635-200 (Personnel Separations Enlisted Personnel), Chapter 12, following his completion of 20 years of honorable active federal service. g. Interim Change 101 amended AR 600-8-19, Paragraph 4-7, by adding the requirement that effective 1 October 1993, a SSG must be a graduate of ANCOC prior to promotion to SFC. Additionally, Interim Change 101 noted: (1) Effective 1 October 1993, conditional promotions are authorized. Conditional promotions are contingent upon the successful completion of the required level of Noncommissioned Office Education System (NCOES). (2) Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the NCOES requirement. (3) Soldiers who fail to complete the required course for bonafide medical or compassionate reasons will not have their promotions revoked. However, those promotions remain conditional until completion of the required course. h. Consistent with the above, there is no evidence that the FSM was denied due process or that NCO Academy cadre personnel deviated in any manner from established procedure, or that the FSM was unfairly denied enrollment in ANCOC, thus resulting in his revoked promotion to SFC. 6. On 15 October 2022, the applicant was provided a copy of the advisory opinion for comment or rebuttal. She requested additional time to 15 November 2022. She did not respond by the requested suspense. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board concurred with the conclusion of the advisory official that there is insufficient evidence indicating an error or injustice occurred when the FSM was denied enrollment in ANCOC based on failing established height and weight standards. Based on a preponderance of the evidence, the Board determined the revocation of the FSM’s conditional promotion and his removal from the SFC promotion list was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 350-1 (Army Training and Leader Development) prescribes policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development. Paragraph 3–13 (Physical readiness and height and weight requirements for military institutional training) states, in pertinent part: a. This paragraph provides policy concerning physical readiness and body fat standards applicable to institutional training. All Soldiers attending institutional training courses are expected to meet the physical readiness standards of this regulation and body fat standards in accordance with AR 600–9. b. Height and weight screening and body composition standards provides: (1) Policy for height and weight screening standards and body composition standards are contained in AR 600–9. (2) Soldiers attending military schools and institutional training courses, in either a permanent change of station (PCS) or temporary duty (TDY) status, which require preparation of a DA Form 1059 (Service School Academic Evaluation Report) will be administered height and weight screening as a mandatory course requirement. (3) One re-screening is allowed. It will be administered no earlier than seven days and no later than 24 days after the initial failure to meet body composition standards. (4) Soldiers who subsequently fail to meet the body composition standards of AR 600–9 will be removed from the course. The DA Form 1059 of Soldiers who fail to pass the APFT and/or meet body fat composition standards will be annotated in block 11d "failed to Achieve Course Standards." Soldiers who fail to achieve course standards are not eligible to enroll in any professional military education (PME) courses for 6 months after their dismissal. The 6-month waiting period begins on the day after the DA Form 1059 is signed. Soldiers who fail to achieve course standards a second time are not eligible to enroll in any PME courses for 1 year after the second failure. School commandants and commanders will take the following actions for Soldiers who fail to meet APFT and/or body fat composition standards. c. Regular Army Soldiers in TDY and return status will be returned to their unit of assignment. Commandants and/or commanders will send a memorandum to the first general officer in the Soldier's chain of command stating the Soldier's deficiencies and that he/she failed to achieve course standards. Unit commanders will initiate appropriate actions to include flagging per AR 600–8–2, changing the immediate reenlistment prohibition code as appropriate and/or initiating a bar to reenlistment. 4. AR 600-8-19 (Enlisted Promotions and Reductions) in effect at the time states in paragraph 1-27 (NCOES requirement for promotion and conditional promotion) effective 1 October 1993, the Army linked NCOES to promotion to SSG, SFC, and Sergeant Major (SGM). Linking the NCOES to promotion ensures NCOs possess the appropriate skills and knowledge required prior to assuming the duties and responsibilities of the next higher grade. ANCOC is a requirement for promotion to SFC. Soldiers selected for promotion to SSG, SFC, and SGM, but have not met the NCOES requirement, will be promoted conditionally. Soldiers who fail to successfully complete or do not attend their scheduled NCOES class will be administratively reduced and removed from the list. Provided otherwise eligible, those Soldiers will recompete to regain promotable status. Soldiers who have previously failed or failed to attend a scheduled NCOES class are not entitled to receive future conditional promotions to the same grade. 5. Interim Change 101 amended AR 600-8-19, Paragraph 4-7, by adding the requirement that effective 1 October 1993, a SSG must be a graduate of ANCOC prior to promotion to SFC. Additionally, Interim Change I01 noted: (1) Effective 1 October 1993, conditional promotions are authorized. Conditional promotions are contingent upon the successful completion of the required level of Noncommissioned Officer Education System (NCOES). (2) Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the NCOES requirement. (3) Soldiers who fail to complete the required course for "bonafide" medical or compassionate reasons will not have their promotions revoked. However, those promotions remain conditional until completion of the required course. (4) Soldiers who failed the required NCOES course prior to 1 October 1993 will not be eligible for conditional promotions. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002403 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1