MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 June 2003
         DOCKET NUMBER: AR2002082767

         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:

Ms. Joann H. Langston		Chairperson
Ms. Jennifer L. Prater		Member
Mr. Paul M. Smith		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 the rank of chief warrant officer five (CW5).

APPLICANT STATES: In effect, that she successfully appealed an officer evaluation report (OER) that she received as a commander and the Officer Special Review Board (OSRB) unjustly denied her promotion reconsideration to the rank of CW5. She further states that she disagrees with the OSRB's assessment that the alteration of the contested OER did not represent a material change to her promotion file. She goes on to state that the impression the contested OER made on members of the promotion boards was that she did not know her job and was still learning it as a chief warrant officer four (CW4) and that she had been all but relieved from command. She continues by stating that such was not the case; however, as a commander, a three-block rating from her senior rater (SR) was a career ender. She also states that the alteration of her OER placed her well above the cut-line for promotion to CW5.

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

She graduated from the University of Maryland with a degree in Law Enforcement and enlisted on 4 September 1974, for a period of 3 years, stripes for skills as a military policeman, and assignment to Europe.

On 31 July 1978, she accepted an appointment as a United States Army Reserve (USAR) Criminal Investigation Division (CID) warrant officer one, with a concurrent call to active duty. She continued to serve on active duty as a CID warrant officer in the Military Police (MP) Branch and was promoted to the rank of CW4 on 1 November 1992.

On 1 August 1994, she received a change of rater OER evaluating her as a commander of a CID Command Resident Agency during the period of 1 March 1994 through 21 July 1994, a 5-month period. She received maximum ratings from her rater and her SR placed her in the third block of his immature SR profile. The narrative comments by the SR indicate that the applicant worked much harder and longer than any other agents assigned and that she commanded the biggest unit in CID. He also recommended that her career be monitored closely, that when ready, she be promoted to CW5, that she be schooled accordingly and assigned to large offices where her expertise and management skills were best used. The report was not considered adverse and as such was not referred to the rated officer.

On 4 October 1999, The Adjutant General of the Army dispatched a memorandum to the applicant informing her that she had been nonselected for promotion to the rank of CW5 for the second time by the Fiscal Year 1999 CW5 Promotion Selection Board. However, a selective continuation board had recommended her for retention until she completed 24 years of service and the Secretary of the Army approved the recommendation. The applicant accepted selective continuation on 18 October 1999.

On 31 October 2001, she submitted an appeal of the contested OER to the OSRB contending that her SR was not authorized to rate her because he had only been her SR for 37 days. Her appeal was approved on 14 December 2001 and the SR portion of the OER was deleted and the report was changed to a 3-month report.

On 4 January 2002, the applicant submitted a request for promotion reconsideration based on her successful appeal of the contested OER. Her appeal was forwarded to the OSRB and on 21 February 2002, the OSRB denied her appeal for reconsideration on the basis that the alteration of the OER did not result in a material change to her file. The OSRB further opined that the applicant had a strong center of mass (COM) file prior to the OER being altered and the alteration did nothing to change that. In determining if a material error exists, the OSRB considers the nature of the inaccuracy, the officer's overall record and the selection rate of the promotion board concerned.

The applicant submitted a request for reevaluation of her request for reconsideration on 27 March 2002, contending essentially the impressions promotion board members formed by reading the contested OER. Her request was returned without action on 4 April 2002 and she was advised to apply to the Board.

On 31 July 2002, she was honorably released from active duty and was placed on the Retired List effective 1 August 2002. She had served 28 years, 10 months and 27 days of total active service.

A review of the applicant's OER history confirms that the majority of the applicant's OER's were COM reports and it appears that she was first considered for promotion to the rank of CW5 in 1998 and every year thereafter until her retirement.

A review of CW5 promotion board selection rates show that in 2001, when the applicant was above the zone, five CW4s in the applicant's specialty were considered (the applicant being one) and only two were selected. In 2000, the overall selection rate was 32.8% and the selection rate for her specialty was 66% (three considered and two selected). In 1999, the overall selection rate was 52.1% and in 1998, the overall selection rate was 61.5%.

Army Regulation 600-8-29 prescribes policies and procedures governing the promotion of Army commissioned and warrant officers on active duty. Chapter 7 of that regulation provides the provisions for conduct of special selection boards (SSB). It provides, in pertinent part, that in order to receive reconsideration by a SSB, a material error must exist in the officer's records that were previously viewed by a selection board. A material error is one that had it been corrected prior to the time the officer was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. If determining a material error exists, reconsideration may be warranted based on the nature of the inaccuracy, the officer's overall record and the selection rate of the promotion board concerned. On 3 November 1982, the authority was delegated to the OSRB to make determinations as to whether special selections boards will be convened. As a guide, the OSRB may direct that a SSB be convened when it determines that there is a fair risk that one or more material errors caused an individual's nonselection by a promotion board.

That regulation also provides that promotion board members will not divulge details of the deliberative process (other than generalized description of board procedures) before, during, or after the board to outside parties, whether senior or subordinate member except as specifically directed by The Secretary of the Army or his or her designee.

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. The Board has noted the applicant's contention that the OSRB unjustly denied her request for promotion reconsideration and finds it to be without merit. The applicant has based her contention on what she contends the promotion board members were thinking at the time they viewed her file and how they viewed her file with the contested OER. She also contends that absent the contested OER, she would have been well above the cut-line for promotion. However, it is a
well-known fact that promotion board members do not reveal such information; therefore, her perspective is at best speculative on her part.

3. The Board has reviewed her records in their entirety as well as the promotion selection rates and finds no flaws in the OSRB's logic or assessment of her chances for promotion by a SSB. While the Board understands the applicant's concerns, the OSRB was within its authority to deny her promotion reconsideration and the Board agrees with the rationale used by that board to make it's decision.

4. 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

__jhl ____ ___jlp___ __pms___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082767
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/06/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 311	131.0100/SSB
2.
3.
4.
5.
6.