MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 November 2002
         DOCKET NUMBER: AR2002073057

         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Donald P. Hupman, Jr.		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: Promotion reconsideration to chief warrant officer four (CW4) under 2001 criteria.

APPLICANT STATES: That the CW4 promotion board did not see his last officer evaluation report (OER) and it was a required OER. He also states that because it was his second appearance before the CW4 promotion board, as Code 11, the promotion report was required. He submits a copy of the OER and an affidavit from his executive officer in support of his application.

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

He was appointed in the Reserve as a warrant officer one effective 4 June 1986 and promoted to CW2 effective 4 June 1989.

He was appointed in the Massachusetts Army National Guard effective 16 April 1993 and promoted to CW3 effective 4 June 1995.

He was considered and not selected for promotion to CW4 by the 2000 Reserve Components Selection Board (RCSB). He was not qualified for promotion based on the lack of the required military education.

He was considered and not selected for promotion to CW4 by the 2001 RCSB.

His record shows he received an OER coded number 11, Promotion Report for the period 4 November 2000 through 4 March 2001.

Based on a review of his records by the Office of Promotions, Total Army Personnel Command (PERSCOM), his records revealed that he completed the military education requirement of the Warrant Officer Advanced Course (WOAC) effective 22 January 2001.

In a memorandum dated 10 April 2002, the applicant's executive officer stated that a Code 11 Promotion Report was required because this was the applicant's second appearance before the promotion board. After he was informed of the applicant's pass-over for promotion, it was discovered that the OER was not seen. He also states that due to no fault of the applicant, this caused his pass-over for promotion to CW4.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a standby advisory board (STAB) for warrant officers (WO’s) may only be based on erroneous non-consideration or material error, which existed in the records at the



time of consideration. Material error in this context is one or more errors of such
a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

This regulation also specifies that mandatory selection boards will convene each year. These boards will consider WO’s to the grade of CW4 who has served 1-year continuous service in an active status. First consideration for promotion will occur well in advance of the date the officer will complete the time in grade requirements. The next board will reconsider those WO’s who were not selected for promotion on the first consideration and who remain in an active status. The regulation does not specify that an OER coded Promotion Report is required for subsequent promotion consideration to CW4.

Army Regulation 135-155 also states completion of the WOAC is required for promotion to CW4 on or before the convening promotion board date.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant was considered by the 2000 and 2001 warrant officer RCSB's and was not selected for promotion. The reasons for non-selected are usually unknown because statutory requirements prevent disclosure of board proceedings to anyone not a member of the board. However, in this case, the applicant could not be selected based on the fact his 2000 record did not reflect completion of the required military education requirements (WOAC) by the convene date of the board. His 2001 file contained his highest military education that was completed on 22 January 2001; however, he was again non-selected. The applicant submitted an Application for Correction of Military Records (DD Form 149) requesting a STAB due to a Code 11, OER missing from his 2001 file. The Code 11, OER is invalid and is not a basis for a STAB. Since he was not educationally qualified for the 2000 board, and his promotion file was complete for the 2001 board, he does not have a basis for a STAB. It was recommended that the applicant's request be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 18 July 2002. He did not respond.





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

1. In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to CW4 under 2001 criteria. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board has noted his contention that an OER Code 11, Promotion Report was missing from his record when he was considered by the 2001 CW4 promotion board. However, pertinent regulations do not specify that an OER Code 11, Promotion Report is required for subsequent promotion consideration for those WO’s who were not selected for promotion on the first consideration; therefore, this OER is not a basis for reconsideration. The board also notes that a review of his records by PERSCOM revealed the OER was determined to be invalid and is not a basis for reconsideration.

3. His records were complete and without material error when reviewed by the 2001 CW4 promotion board.

4. The Board further notes that as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of an RCSB determining an individual's potential and ability to perform at the higher grade. Promotion and retention is keenly competitive, and many officers will not be selected.

5. Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers. The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications. Given that the applicant became a CW3 in 1995 and that he had to be considered by an RCSB so that, if selected, he could be promoted to CW4 by the time he had served 5 years in grade, the applicant knew, or should have known, that he would be considered by an RCSB as earlier as 2000, and that he needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.

6. 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.


7. 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

__TBR___ _RVO___ _DPH___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073057
SUFFIX
RECON
DATE BOARDED	20021107
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.