MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 February 2001
         DOCKET NUMBER: AR2001052662

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Melvin H. Meyer		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)

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APPLICANT REQUESTS: Retention on active duty to obtain 20 years of qualifying service for retirement.

APPLICANT STATES: In effect, that after having completed 17 years of active service, he has been twice nonselected for promotion to the rank of chief warrant officer three (CW3) and is being required to separate from the service as a warrant officer. He further states that his nonselection was the result of his being disadvantaged when the Department of the Army expanded the promotion zones of consideration while keeping the selection rates constant. As a result there were more officers considered and an increased number that were nonselected. He also contends that a single evaluation report had a greater impact on nonselection under an expanded zone and contends that his officer evaluation report (OER) for the period of April 1998 to April 1999 was the contributing cause of his nonselction. In support of his application he submits endorsements from his chain of command for continuation on active duty and the results of his OER appeal to the Officer Special Review Board (OSRB).

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

After serving 9 years, 4 months and 6 days of total active service, he was honorably discharged in the pay grade of E-7 on 27 June 1993 for the purpose of accepting an appointment as a warrant officer one (WO1) with a concurrent call to active duty.

He was appointed as a WO1 on 28 June 1993 and entered active duty on the same date. He was promoted to the rank of chief warrant officer two (CW2) on 28 June 1995.

On 27 September 2000 the applicant was notified by The Adjutant General of the Army by memorandum that he had been twice nonselected for promotion by Department of the Army selection boards and that the most recent board that nonselected him was approved by the Secretary of the Army in August 2000. It also informed him that he was required to be released from active duty no later than the first day of the seventh month after the Secretary of the Army approved the results of the board (1 March 2001).

The applicant submitted an appeal of his OER (April 1998 to April 1999) to the OSRB on 15 October 1999 contending that the OER did not accurately or objectively reflect his performance during the rated period. He also contended that the comments in the contested OER impugned his integrity as a soldier and requested that they be removed from the report.

The OSR contended that the applicant did not submit clear and convincing evidence to support his contentions and returned his appeal without action on 10 March 2000. There is no indication in the available records to show that he further appealed the contested OER.

On 10 October 2000, the applicant’s battalion commander submitted an appeal to the President of the CW2 Selective Continuation Board requesting that the applicant’s potential for selective continuation be reconsidered and that the applicant be allowed to remain on active duty. Officials of the Total Army Personnel (PERSCOM) responded to the effect that the Secretary of the Army did not designate the applicant’s specialty as one of those to be considered for selective continuation and since the applicant had less than 18 years of active Federal service (AFS) as of 1 March 2000, he must separate from the service.

The chain of command endorsed the applicant’s request to the Board contending, in effect, that it was an injustice to not select the applicant for promotion and selective continuation. His chain of command also strongly endorsed the position that he is an excellent special forces warrant officer and that the one contested OER should not serve as the basis to deny such an officer further service.

Army Regulation 600-8-24 serves as the authority for processing separations of commissioned and chief warrant officers who are twice nonselected for promotion by a Headquarters Department of the Army Centralized Board. It states, in pertinent part, that commissioned and warrant officers who are twice nonselected for promotion will be involuntarily released from active duty on the first day of the seventh month following the Secretary of the Army approval of the promotion selection board results unless they are selectively continued, have completed 18 years of AFS as of their scheduled release date or have retired. A warrant officer may submit their resignation or request earlier separation for the purpose of continuing on active duty in an enlisted status. A warrant officer with 18 or more years of AFS as of the scheduled released date will be afforded the opportunity to be retained on active duty to reach retirement eligibility.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 has failed to submit evidence that would satisfy this requirement.

2. While it is unfortunate that the applicant was twice nonselected for promotion, such a nonselection does not necessarily constitute an error or injustice by the Department. He was properly considered by a duly constituted promotion selection board along with his peers and was nonselected for promotion based on a comparison of his records to those of his peers. Accordingly, his required separation of 1 March 2001 is correct.

3. The Board has noted the applicant’s contention that the cited OER caused his nonselection. However, it is a well known fact that promotion selection boards do not reveal the reasons for selection or nonselection. Therefore, it appears that his contention is at best speculative on his part and is not supported by either the evidence of record or the evidence submitted with his application.

4. The applicant was considered for promotion along with his peers and was nonselected for promotion. Therefore, the Board finds that to grant him an exception in this case without evidence of an error or injustice to support such a decision would be affording him an unfair benefit/advantage not afforded to others in similar situations.

5. The Board is aware that there are similar situations that occur upon the release of almost every promotion selection list. However, the Board does not grant exceptions in those cases unless there is evidence of error or injustice showing that the individual concerned was denied a benefit afforded to others in similar situations.

6. The applicant has failed to show that he was denied the same proper consideration that those of his peers received and he has also failed to show that the OER in question was in error as well. Therefore, in the absence of evidence to show that he was improperly nonselected or that the needs of the Army would best be served by retaining him in his present grade, there is no basis for the Board to grant relief in his case.

7. The supporting documents submitted by the applicant have been noted by the Board. However, given that his records were compared to those of his peers by two separate selection boards and he was nonselected by both boards, they are not sufficiently mitigating to warrant relief in his case.

8. The Board understands the applicant’s concerns regarding his ability to attain retirement eligibility and notes that while he is being released from active duty, there are other avenues available that he may choose to pursue in order to continue his service and to attain retirement eligibility.

9. 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

__mkp___ __fe____ ____mm_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001052662
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/02/15
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 320	131.1000/2XX PASSOVER/
2.
3.
4.
5.
6.