PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 April 2003
         DOCKET NUMBER: AR2002079695


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		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 all references to his non-selection for promotion by the 2002 Department of the Army (DA) Chief Warrant Officer Four (CW4) Reserve Component (RC) Promotion Selection Board (PSB) be expunged from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that he elected transfer to the Retired Reserve on 18 March 2002 in accordance with an Army Reserve Personnel Command (ARPERSCOM) letter, dated 5 March 2002. He claims that he made this election specifically to preclude being evaluated by the promotion board in question, knowing with certainty that he would be discharged if passed over for the second time. He states that with the second non-selection in his record, he has no ability to rehabilitate his career. In support of his application, he provides a copy of the 5 March 2002 ARPERSCOM letter and computer records maintained by the United States Army Reserve (USAR).

4. The applicant’s military records show that the applicant has completed the qualifying years necessary to be eligible to receive retired pay at age 60 and he is currently in the Retired Reserve of the USAR.

5. On 5 March 2002, ARPERSCOM notified the applicant that a immediate decision from him was required as to whether he planned to further his career by resuming active participation in the USAR. Enclosed with the letter was a participation election form that the applicant was required to complete and return.

6. On 18 March 2002, the applicant completed the participation election form and indicated that he had a “20 Year Letter”, and was electing to be transferred to the Retired Reserve.

7. On 6 August 2002, the applicant was notified, in a U.S. Army Total Army Personnel Command (PERSCOM), St. Louis, Missouri memorandum, that he had been considered and not selected for promotion to CW4 by the 2002 DA RC PSB that convened on 22 April 2002. He was also informed that since this was his second non-selection, he must be discharged unless he was eligible to transfer to the Retired Reserve.

8. Orders Number C-10-226608, issued by ARPERSCOM, directed the applicant’s transfer to the Retired Reserve, effective 16 October 2002. The reason cited for this action was that the applicant had completed 20 or more years of Reserve duty.

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9. In connection with the processing of this case, an advisory opinion was obtained from PERSCOM, St, Louis RC promotion officials. It states that the applicant was considered and not selected for promotion by the 2001 PSB because he had not completed the advanced course. It also indicates that the applicant was contacted by ARPERSCOM in March 2002, about continuing his military career, and he opted to transfer to the Retired Reserve. The applicant notified ARPERSCOM of this decision on 18 March 2002. However, the applicant was again considered and not selected for promotion by the 2002 PSB that was held between 22 April and 9 May 2002. The applicant was notified of this second non-selection on 6 August 2002, and his removal date was established as 15 October 2002. On 16 October 2002, he was transferred to the Retired Reserve. The opinion concludes by indicating that if prompt action had been taken on the applicant’s initial request for transfer to the Retired Reserve, he could have been retired before the results of the 22 April 2002 PSB were received. However, since he was retired after the PSB results were approved by the appropriate authority, his non-selection is valid and the letter cannot be removed from his OMPF.

10. The applicant was provided a copy of the PERSCOM advisory opinion and responded on 14 March 2003. He stated that the comment that he was not selected for promotion the first time because he had not completed an advanced course was factually incorrect. He claims that he completed an officer’s advanced course, from which he was identified as the distinguished graduate. While serving in the Army National Guard as a warrant officer, he needed the advanced course to be eligible for promotion to CW3, and he petitioned for an equivalency determination. This petition was approved by the DA Aviation Proponent Office and accepted by the National Guard Bureau (NGB), a copy of this action is enclosed. He also states that RC promotion officials make his case for removing the second non-selection from his records when they admit that he had requested transfer to the Retired Reserve prior to the convening date of the 2002 PSB, and had prompt action be taken he would not have been considered by the 2002 PSB. He claims he had no control over the actions in question once he submitted his election option form, and the failure of those officials to act on this request in a timely manner, after having asked him to make an immediate decision, was not the result of any failure to respond on his part.

11. The applicant also indicates that he is now expanding the scope of his petition to this Board. He requests that PERSCOM recognize the equivalency determination for his warrant officer advanced course that was approved by the DA, Chief Aviation Proponent and NGB as meeting the military education requirement for promotion to CW4. In addition, he asks that the non-select result pertaining to him from the 2001 DA RC PSB be reversed, and that he be promoted to CW4 with an effective date commensurate with promotions made from that PSB.

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12. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR). Paragraph 2-5 contains promotion eligibility criteria. It states, in pertinent part, that a warrant officer with an established date for removal from active status, that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration. Table 2-3 contains the promotion eligibility criteria for warrant officers. It states, in
pertinent part, that completing of the warrant officer advanced course is
required for promotion to CW4. However, paragraph 2-15 allows for exceptions and indicates that the Commander, PERSCOM, Chief, Office of Promotions (RC), (TAPC-MSL), is the approval authority for all requests for exception to
non-statutory promotion requirements.

CONCLUSIONS:

1. The Board notes the applicant’s original request to have all references to his second non-selection for promotion to CW4 expunged from his OMPF, and it finds this claim has merit.

2. By regulation, a warrant officer with an established date for removal from active status, that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration. Although the applicant’s removal date was not formally established by orders or any other authorizing document, it is clear that at the request of ARPERSCOM officials for an immediate decision, he formally stated his intent to be transferred to the Retired Reserve on 18 March 2002, before the 22 April 2002 convening date of the PSB in question.

3. In the opinion of the Board, notwithstanding the recommendation of PERSCOM promotion officials, given ARPERSCOM solicited an immediate decision from the applicant in regard to participation intentions, it was the command’s obligation to take prompt action once the applicant made his decision on 18 March 2002. Therefore, the Board concludes that it would be appropriate to amend the applicant’s orders to show he was transferred to the Retired Reserve, effective 18 March 2002, the date he completed his participation option form.

4. In addition, since the applicant would have been ineligible for promotion consideration had he been transferred to the Retired Reserve on 18 March 2002, the Board also concludes that it would be appropriate to correct his record to show he was never considered for promotion to CW4 by the 2002 PSB, and to expunge all documents related to his non-selection by this PSB from his OMPF.
5. The Board notes the applicant’s request to expand his petition by granting him military education equivalency for the warrant officer advanced course requirement, to reverse the results of the 2001 CW4 PSB, and to promote him to CW4. However, the regulation that governs the operations of this Board requires that all administrative remedies be exhausted prior to Board action.

6. There is no evidence to show that the applicant ever submitted a request to PERSCOM, St. Louis, for a waiver of the military education requirement or equivalency prior to his consideration by the 2001 PSB. Thus, since the Commander, PERSCOM, St. Louis, has the authority to approve military education waivers, the Board elects not to consider the issues the applicant raises in his expanded petition until he has exhausted all administrative remedies.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was transferred to the Retired Reserve, effective 18 March 2002; by showing that he was not eligible for and was not considered for promotion to CW4 by the 2002 DA RC PSB; and by expunging all references his consideration and non-selection by the 2002 PSB from his OMPF.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___mm __ _mb____ _clg ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Melvin H. Meyer____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079695
SUFFIX
RECON
DATE BOARDED	2003/04/22
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 283	126.0400
2.
3.
4.
5.
6.