PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 October 2003
         DOCKET NUMBER: AR2002079445


         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
Mr. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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.

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2. The applicant requests, in effect, that her date of promotion to chief warrant officer three (CW3) be reinstated to her original promotion date or the date of Suspension of Voluntary Separation of Officers and Enlisted Soldiers from the Active Army (stop loss) action, 2 December 2001 and that she receive back pay for this period.

3. The applicant states, in effect, had she received notice of the stop loss prior to her normal promotion date (PED), the date of her promotion, or the date of the revocation of her promotion orders, she would have accepted the promotion, integration into the Regular Army, and the additional service obligation.

4. The applicant’s military records show that she entered active duty in June 1993 and received her warrant officer appointment in October 1993. She was promoted to CW2 in 1995 and completed CH-47D Instructor Pilot Course in August 1997.

5. The applicant was selected for promotion to CW3 by the 2001 selection board with a promotion date of 1 November 2001.

6. On 16 September 2001, she declined the promotion and requested voluntary release from active duty. On 10 October 2001 she was counseled on the effect of her election and the fact that it was irrevocable on or after the normal date of her promotion, 1 November 2001.

7. On 14 November 2001 her declination was accepted and her name was removed from the promotion list and the promotion order was revoked. The approval notice stated that revocation of her promotion orders would be published in January 2002 and that she would not be eligible for promotion consideration again. The expiration of her time in service (ETS) was extended to 13 February 2002, the maximum 90 days following acceptance of her declination.

8. On 2 December 2001, due to a critical shortage of CH-47D personnel the Army initiated a stop loss action (MILPER Message Number 02-048), which included the applicant’s career field. The message applied to all military personnel with an ETS after 15 January 2002 and states that affected personnel are extended on active duty until further notice. It states that, unless they met one of the exceptions listed, their ETS would be changed to 24 December 2031 as an arbitrary date for tracking purposes.

9. Upon notification of the stop loss action and the fact that her release from active duty was placed on indefinite hold, the applicant commenced action, on 8 December 2001, to have her name returned to the promotion list.

10. In multiple e-mail communications between the applicant, her local management personnel, and G1 personnel, the applicant was notified that she could be reinstated on the promotion list only if her Promotion Eligibility Date (PED) had not passed as of the date of the acceptance of her declination.

11. In a 27 June 2002 memorandum from the Office of the Deputy Chief of Staff, G-1, the Director of Military Personnel notified the applicant that he did not have the authority to reinstate her on the 2001 promotion list and that she would have to apply to this Board for an exception to policy.

12. During the processing of this case an advisory opinion was obtained from the Total Army Personnel Command, Deputy Chief of Promotions. The Deputy Chief summarized the case and the regulatory provisions and opined that, in accordance with Army Regulation 600-8-29, because her PED had passed before the date she had requested to be reinstated, she was not eligible for reinstatement.

13. The advisory opinion was forwarded to the applicant. In her rebuttal the applicant stated that she was aware of the regulatory provisions but that her counseling occurred prior to the stop loss, therefore, she had not discussed this aspect with her commander. She asked that an exception to policy be made.

14. Army Regulation 600-8-29 (Officer Promotions) states that an officer who declines promotion will be deleted from the promotion list by HQDA. The officer will not be eligible again for promotion as a result of action by the promotion selection board or special selection board that recommended him or her for promotion and declination is irrevocable on or after the effective date of the promotion. Removal from a promotion list based on declination of promotion will not constitute a nonselection for promotion.

15. Army Regulation 600-8-29, paragraph 5-5 states that an officer should be counseled by his or her rater about the impact of declination, that PERSCOM (TAPC-MSP-O) must receive a declination memorandum signed by the officer before the effective date of promotion, that the name of an officer who declines promotion will be deleted from the promotion list by HQDA. The officer will not be eligible again for promotion as a result of action by the promotion selection board
or special selection board that recommended him or her for promotion, that the declination is irrevocable on or after the effective date of the promotion, that deletion from a promotion list based on declination of promotion will not constitute a nonselection for promotion nor will it have the effect of a removal from a promotion list under chapter 8.

16. Her Officer Evaluation Reports (OERs) show that her raters have always considered that she had exceeded requirements or (under the new system) that her performance was outstanding. They have recommended her early promotion. Her intermediate raters have agreed. Her senior raters have always ranked her in the top box or (under the new system marked her "Best Qualified" and ranked her in the Center of Mass. Her awards include the Army Commendation Medal with Oak Leaf Cluster, the Senior Aviator Badge and the Air Assault Badge.

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17. The applicant’s records were reviewed by the 2002 promotion board and she was again selected for and promoted to CW3, effective 1 October 2002. With the acceptance the applicant has agreed to the additional obligated service and has accepted integration into the Regular Army.

18 In a telephone conversation with the analyst, the applicant indicated that the decision to decline the promotion and to leave active duty was based on her perception that, because of her rating as a CH-47 instructor pilot she was going to be stuck in that capacity for the foreseeable future. She perceived herself to be, effectively, in a dead end job. She felt that, as a young female pilot, her career prospects were brighter in civilian aviation.

CONCLUSIONS:

1. The applicant was properly counseled on the consequences of declining promotion and integration, as they were in effect at the time of that counseling. Since her PED had passed, her name could not be reinstated on the promotion list.

2. However, the Board notes that there is no evidence that she or her commander had any indication of a potential stop loss consideration at the time of her counseling or at the time that her declination was accepted.

3. The applicant's request, dated 1 week after the terrorist attacks of 11 September 2001, should not be held against her. Her decision had to have been made earlier than that and no one could have foreseen, on 16 September 2001, where events would lead. This is demonstrated by the fact that it took Headquarters, Department of the Army until 2 December 2001 to publish the stop loss action.

4. She simply made a career decision based upon her perception of her overall prospects. Except for the fact that her PED had already passed, she would have been allowed to withdraw her declination and would have been promoted effective 1 November 2001.

5. Her overall record and the fact that she was again selected for promotion shows that the Army considers her a significant asset. Additionally, the applicant has accepted the promotion, the additional required obligated service and integration into the Regular Army, even though she has sustained loss of several months of seniority because her career decision made prior to the stop loss.

6. Therefore, the Board finds that it is an injustice to penalize her for not being able to rescind her declination and concludes that it would be in the interest of justice to grant her an exception to policy and reinstate her on the original promotion list.

7. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. restoring the applicant’s name to the 2001 CW3 promotion list;

b. showing that she was promoted to CW3, with a date of rank and effective date of 1 November 2001; and

c. paying her all back pay and allowances.

BOARD VOTE:

__AAO___ __HOF__ __MMB_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                    _ Arthur A. Omartian__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079445
SUFFIX
RECON
DATE BOARDED	20031016
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.