IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090020321


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests promotion reconsideration to Chief Warrant Officer Four (CW4) by a Department of the Army (DA) Stand-By Advisory Board (STAB) using promotion criteria for the 1993 DA Reserve Components Selection Board.

2.  The applicant states, in effect, he was non-selected for promotion to CW4 in 1993 and 1994 and "forced to retire."  His non-selection was unfair because his promotion packet did not contain an Officer Evaluation Report (OER) for the period ending 3 October 1991.  This constituted a material error requiring promotion reconsideration.  However, when he applied for promotion reconsideration in 1995, he was unfairly denied the opportunity.

3.  The applicant provides:

* congressional correspondence
* a memorandum to the Army Board for Correction of Military Records (ABCMR), dated 19 November 2009
* a copy of the OER with an ending date of 3 October 1991
* a copy of his Officer Record Brief with a preparation date of March 1993
* copies of course completion documents for the Warrant Officer Support Maintenance Technician Course
* an Army Achievement Medal Certificate
* a Junior Officer Maintenance Course diploma


* a DA Form 1059 (Service School Academic Evaluation Report)
* a DA Form 2-1 (Personnel Qualification Record – Part II)
* a Commander, Army Reserve Personnel Center (ARPERCEN) memorandum (memo), dated 2 March 1992, stating the applicant's first promotion consideration to CW4 would be 1993
* a Commander, ARPERCEN memo, dated 6 February 1995, stating the applicant was considered for promotion in 1993 and 1994, but not selected, and his records seen by the promotion board were complete, thus he had not basis for a STAB

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is a Chief Warrant Officer Three (CW3) assigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) since 22 June 1999.  He has sufficient service to receive retired pay at age 60, which will occur on 20 July 2014.

3.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows the following history:

* 19710729-19761216	Enlisted Regular Army Service
* 19761217-19791216	Warrant Officer (W/O) USAR Active Duty Service
* 19791217-19831216	W/O USAR Inactive Service
* 19831217-19951216	W/O USAR Troop Program Unit Service
* 19951217-19990621	W/O USAR Inactive Service
* 19990622					W/O USAR Retired 

4.  The applicant's records show he was promoted to CW3 and given a date of rank (DOR) of 17 December 1986.  In 1991, he was serving as a maintenance 


technician with the 496th Military Police Battalion, San Jose, CA.  In that assignment, he received an OER (DA Form 67-8) for the period 19901104-19911003.

5.  The following is a synopsis of the applicant's OERs for the period 19901104-19911003.  For the DA Form 67-8, the rating system had six critical entries:  the first two entries are derived from the rater performance and potential blocks, expressed in numerals, with 1 the highest and 5 being the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant.  For the subject OER, the applicant was rated 2/2/4/0-0-0.  This means his rater rated him in the second blocks for performance and potential (usually exceeded [performance] requirements, promote with contemporaries), and his senior rater in block four (of nine), with no other rating during the period.  Although the narratives were praiseworthy, the block checks were decidedly substandard.

6.  The applicant was considered for promotion to CW4 by the 1993 and 1994 DA Reserve Components Selection Boards.  He was not selected for promotion. He applied to this Board in 1995 seeking promotion reconsideration by a STAB under both the 1993 and 1994 promotion criteria, claiming material error in the composition of his promotion packets.  In an advisory opinion, ARPERCEN stated his 1993 promotion packet was complete and without error (or he had not proven error), and in 1994, he failed to meet educational requirements for promotion to CW4.  The advisory opinion recommended denial of the applicant's request for a STAB.  This Board's action is not available for review; however, the applicant was not afforded a STAB and was not promoted.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, U.S. Army Human Resources Command (HRC), St Louis, MO which states that the applicant, in 1995, did not provide documentation to justify his claim of material error during the 1993 board and did not meet educational requirements for the 1994 board.  However, in the current request, he has provided the subject OER which, it has been determined, was not a part of his 1993 promotion packet.  This omission forms the basis for promotion reconsideration by a STAB under the 1993 criteria.  The applicant was provided an opportunity to respond to the advisory opinion, and he concurred on 21 June 2010.



8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the 
USAR.  It provides, in pertinent part, officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board (STAB) or a special selection board, as appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests promotion reconsideration to CW4 by a STAB using promotion criteria for the 1993 DA Reserve Components Selection Board.

2.  The HRC Special Actions Branch, DA Promotions, stated the applicant's promotion packet seen by the 1993 promotion board did not contain the OER for the period 19901104-19911003.  That office recommended the applicant be granted promotion reconsideration under the 1993 board criteria.

3.  The applicant's records should be reviewed for promotion using the criteria in effect in 1993.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by granting him promotion reconsideration to CW4 under the 1993 promotion selection criteria.  If selected for promotion, his records should be further 


corrected by promotion him to CW4, assigning the appropriate date of rank, paying him any associated back pay and allowances, and showing he transferred to the Retired Reserve in the rank of CW4.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090020321





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020321



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1