MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003089450

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Harry B. Oberg		Member
Mr. Thomas Lanyi		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)

---

APPLICANT REQUESTS: In effect, that he be considered by a Department of the Army (DA) Special Selection Board for promotion to Chief Warrant Officer Four (CW4).

APPLICANT STATES: That the Warrant Officer Branch at the U.S. Reserve Army Personnel Command (AR-PERSCOM) denied him the opportunity to attend the Warrant Officer Advanced Course (WOAC) from 18 March 2002 to 12 April 2002 because he was "inappropriately" listed on the Active Retired List. He referenced Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 8-2 which states that soldiers on the Active Status List may participate in Reserve training activities at no expense to the government, earn retirement points, and be eligible for promotion. He attended the WOAC which graduated on 11 April 2003. The applicant did not submit any documents in support of his application.

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

The applicant initially served as an enlisted soldier in the Regular Army from February 1983 through August 1989. He was appointed as a Reserve Warrant Officer in the rank of Warrant Officer One on 18 August 1989 and entered active duty that date.

The applicant was promoted to the rank of Chief Warrant Officer Two (CW2) on 18 August 1991.

On 17 August 1994, the applicant was released from active duty under the provisions of Army Regulation 635-100, chapter 3 based on the completion of required active service. On the following day, he was transferred to the U.S. Army Reserve Control Group (Reinforcement).

The applicant's Officer Evaluation Report (OER) for the period ending 17 August 1994 is not in his Official Military Personnel File.

Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, Orders C-06628938, dated 4 June 1996 transferred the applicant from the U.S. Army Reserve Control Group (Reinforcement) to the Standby Reserve (Active List) effective 4 June 1996. These orders indicate that the applicant was assigned to the Standby Reserve (Active List) due to being a key employee (as a Secret Service Special Agent).

The applicant was promoted to the rank of Chief Warrant Officer Three (CW3) on 18 August 1997.

The applicant was nonselected for promotion by the 2002 CW4 DA Reserve Components Selection Board which convened on 22 April 2002.
There is no evidence of record available to the Board which shows the applicant was erroneously placed on the Active Retired List.

In the processing of this case, a staff advisory opinion was obtained from the Chief of Special Actions Branch, Office of Promotions, Reserve Components.

The opinion stated that the applicant's record was considered by the 2002 CW4 DA Reserve Components Selection Board and was not selected. The opinion pointed out that the applicant could not be selected based on the fact that his 2002 record did not reflect completion of the required military education (WOAC) by the convene date of the board. In addition, an OER ending 17 August 1994 was not seen.

The opinion stated that Special Selection Boards are granted to officers that have a material error document missing from their promotion consideration files, material error documents defined as the highest military and civilian education, award of a silver star and above, and missing OER.

The opinion further pointed out that the applicant indicated on his DD Form 149 that he was prevented from attending the WOAC in 2002 due to his record being coded with a CURORG "O" which reflects active retired list. On 18 August 2003, AR-PERSCOM informed the staff of the ABCMR that the CURORG code of "O" represents "Standby Reserve (Active List)." The applicant completed the required military education on 11 April 2003. On 20 August 2003, AR-PERSCOM further informed the staff that the applicant may have been erroneously informed in March 2002 that he was on the "Active Retired List" but that he was properly informed that AR-PERSCOM could not pay for his attendance at WOAC (not that he could not attend WOAC).

The opinion noted that, in accordance with Army Regulation 135-155, required military education must be completed prior to the convening date of the board. Therefore, his request for a special selection board was denied.

A copy of the advisory opinion was provided to the applicant in order to allow him to submit comment or rebuttal; however, he has not responded.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which existed in the record 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 nonselection 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 nonselection, except if an individual is not qualified for noncompletion of required military schooling.

Paragraph 2-5 of Army Regulation 135-155 states in pertinent part that warrant officers serving in a grade below CW4, in an active Reserve status, may be selected for promotion provided they meet the minimum promotion TIG (time in grade) and military education requirements in Table 2-3 not later than the date the selection board convenes. Table 2-3 (Warrant Officer TIG and Military Education Requirements) shows that the minimum military education level required for promotion from CW3 to CW4 is the WOAC.

Chapter 8 of Army Regulation 140-10 prescribes policy and procedures governing membership in the Standby Reserve. The Standby Reserve consists of soldiers who maintain their military affiliation without being in the Ready or Retired Reserve. It states in pertinent part that soldiers on the Active Status List may participate in Reserve training activities at no expense to the government, earn retirement points, and be eligible for promotion. This regulation also states that the Active Status List consists of soldiers assigned as key employees which are soldiers screened from the Ready Reserve who requested assignment to the Active Status List or who have a remaining statutory military service obligation per Army Regulation 135-133.

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, 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 evidence of record shows the applicant was transferred from the U.S. Army Control Group (Reinforcement) to the Standby Reserve (Active List) on 4 June 1996. The Board notes that the applicant requested assignment to the Standby Reserve (Active List) as a key employee in accordance with Army Regulation 140-10. Evidence obtained from AR-PERSCOM revealed that the applicant's records contained the CURORG code of "O" which reflects "Standby Reserve (Active List)."

3. The Board notes the applicant's contention that he was denied the opportunity to attend WOAC because he was "inappropriately" listed on the Active Retired List. However, there is no evidence of record which shows the applicant was listed on the Active Retired List. AR-PERSCOM acknowledged that he may have been erroneously informed in March 2002 that he was on the Active Retired List, but at the same time he was told that they could not pay for his attendance at WOAC but they did not tell him that he could not attend. There is no evidence to show that he requested at that time to arrange a class date at no cost to the Government.

4. The Board notes that the applicant did not enroll in the WOAC in March 2002 one month prior to the time he would be considered for promotion to CW4. Therefore, he was not selected for promotion by the 2002 CW4 DA Reserve Components Selection Board because he did not meet the military educational requirement for promotion.

5. Upon review of all the evidence and the advisory opinion provided by Office of Reserve Components Promotions, the Board determined that there is no material error or injustice that exists in this case.

6. Based on the foregoing, there is no basis for granting the applicant a Special Selection Board for promotion reconsideration to the rank of CW4.

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

AAO____ HBO____ TL______ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003089450
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030828
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.0100
2.
3.
4.
5.
6.