IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100025465 


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 to chief warrant officer three (CW3) and chief warrant officer four (CW4).

2.  The applicant states he was promoted to chief warrant officer two (CW2) in December 1960.  He should have been promoted to CW3 while on active duty 5 to 7 years later and subsequently to CW4, also 5 to 7 years later.  He does not know why he was not promoted.  He also states:

	a.  He received his warrant officer appointment while recovering from a broken leg at Madigan Army Hospital in May 1958 and he was unable to take a physical for active duty until he recovered from his injury in November 1958.  He was ordered to active duty on 1 June 1959 and he was promoted to CW2 in December 1960.  He remained a CW2 until he retired in 1973.  Meanwhile, he had had several officer evaluation reports (OER) for duties Stateside as well as overseas in Greenland, Germany, and twice in Vietnam.  He even completed airborne school so he could go to Vietnam with the 173rd Airborne Brigade.  Additionally, during his first tour of duty in Vietnam, he was selected ahead of other more experienced individuals to go to CuChi with the 163rd Transportation Battalion because of his expertise.

	b.  He previously served in an enlisted status and he was promoted through the ranks from private/E-1 in August 1953 to staff sergeant/E-6 in June 1956 because of his expertise with the 120-milimeter guns and missile systems.  He then applied for appointment as a warrant officer in a missile military occupational specialty (MOS).  The only OER he was never counseled on came while serving in Greenland when his commander gave him a bad OER because he told authorities that his commander committed a certain misconduct for which the commander was later relieved.

	c.  When the Nike missile system was no longer used by the Army, he went to Fort Sill, OK, to attend Automotive Maintenance Officer School.  He subsequently went to Germany and then on to Vietnam.  While in Vietnam, he started a program known as the Maintenance Assistance and Instruction Team (MAIT) that was later adopted by the Army.  He spearheaded the program and he was sent out to various units training and/or correcting deficiencies.  He was able to bring up the equipment to a 97-percent operational rate.  He then returned to the United States and later participated in the Redeployment of Forces to Germany Exercise in Germany.  He returned to Fort Lewis, WA, and ran the maintenance program for the 6th Air Defense Artillery Group.  He ultimately served in Germany where he was called upon to start another MAIT Program and he successfully ran it until he retired in 1973.  He served faithfully and he saw other warrant officers with less time in service getting promoted ahead of him.  He feels he should also be promoted.

3.  The applicant did not provide any additional evidence.

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.  Having had prior enlisted service from 18 August 1953 to 14 June 1959, the applicant's records show he was appointed in the U.S. Army Reserve as a Reserve warrant officer of the Army and executed an oath of office on 27 May 1959.

3.  He entered active duty as a warrant officer on 15 June 1959 and he was assigned to Fort Bliss, TX.  He requested and was authorized retention on active duty on 26 April 1961 until further notice.  He was promoted to CW2 in the Army of the United States (AUS) on 15 December 1960.

4.  He completed several training courses and served in staff or leadership positions within and outside the continental United States, including service in Greenland from August 1962 to August 1963, in Germany from March 1965 to April 1966, in Vietnam from June 1966 to May 1967 and May 1968 to December 1969, and in Germany from August 1971 to April 1973.

5.  He was awarded MOS 631A (Automotive Maintenance Technician) in July 1964 and MOS 632A (Automotive Repair Technician) in February 1972.  He was awarded the National Defense Service Medal; Vietnam Campaign Medal; Basic Missile Badge; Parachutist Badge; Bronze Star Medal (2nd Award); five overseas service bars; Army Commendation Medal; Expert Marksmanship Qualification Badge with Rifle, Pistol, and Missile Bars; and 1st Class Artillery Badge.

6.  His records show he was considered for promotion to CW3 by the 24 September 1965, 12 August 1966, and 21 April 1967 promotion selection boards, but he was not selected.

7.  On 22 May 1968, the Office of Personnel Operations, Fort Benjamin Harrison, IN, issued him a promotion to CW3 memorandum.  He was promoted as a Reserve warrant officer of the Army effective 27 May 1968.  

8.  On 15 January 1971, an administrative review of his records revealed an OER for the period 15 April 1966 through 27 October 1966 was received by Headquarters, Department of the Army (HQDA), on 6 January 1967 but was not seen by the April 1967 promotion selection board.  Additionally, a second OER for the period 21 February 1970 through 7 July 1970 was received by HQDA on 12 October 1970 but was not seen by the September 1970 promotion selection board.  As the absence of these two OERs constituted a material error, his records were directed to be referred to an Army Standby Advisory Board (STAB) for reconsideration for promotion under the same criteria for the April 1967 board for the first OER and September 1970 for the second OER.

9.  On 22 March 1971, he was notified by memorandum that a STAB reviewed his records for promotion to CW3 under the 21 April 1967 and the 11 September 1970 criteria under Army Regulation 624-100 (Promotions of Officers on Active Duty), but he was not recommended for promotion by either board.

10.  On 23 November 1971, he was notified by memorandum through his chain of command that he was considered for promotion to CW3 in the AUS by the promotion selection board that convened on 13 July 1971 to consider officers for promotion in the AUS to CW3 under Army Regulation 624-100, but he was not selected.  Additionally, since he twice failed to be found qualified for promotion to the next higher grade, he was required to be discharged.  However, since he had completed over 18 years of active service, he was retained on active duty until he attained retirement eligibility (no later than 30 September 1973).

11.  On 21 March 1973 subsequent to having been issued a mandatory release date from active duty, he voluntarily requested retirement from the Army.  His request was subsequently endorsed by his chain of command and it was ultimately approved by HQDA.

12.  He was honorably retired from active duty on 31 August 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was credited with completing 20 years and 13 days of creditable active service.  His DD Form 214 also noted that his retired grade is CW3 which is the highest permanent Reserve grade he attained.  

13.  Army Regulation 624-100, in effect at the time, prescribed the policies and procedures for promotion of commissioned and warrant officers on the Active Duty List.  It states commissioned and warrant officers were recommended for promotion by their commanders, and were selected by centralized (service wide) promotion selection boards who made promotion determinations based upon the officers' promotion records.  There are basically three promotion opportunities below the zone, in the zone, and above the zone.  Most promotions occur in the zone.  Those not selected in the zone have one more chance a year later – above the zone.   The two most significant factors in an officer's promotion records are inarguably their fitness report(s) and the level of responsibility in their current and past assignments.  An average fitness report can result in being "passed over."  Lack of current or previous assignments that showed significant degrees of responsibility can also result in not being selected.

14.  Special selection boards (or STAB's for warrant officers) are convened to consider commissioned or warrant officers (as applicable) for promotion when HQDA discovers that an officer was not considered from in or above the promotion zone by a regularly-scheduled board due to an administrative error, or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error, or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  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 non-selection by a promotion selection 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to CW3 and CW4 on the Active Duty List.

2.  Each promotion selection board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his memorandum of instruction to the board, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

3.  It is unfortunate the applicant was not selected for promotion to CW3 and CW4 while he was on active duty; however, it is a well known fact that not everyone who is eligible for promotion is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion selection boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.

4.  His contention that a bad OER may have served as the basis for his non-selection is speculative at best.  It is a well known fact that promotion selection boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, it must be presumed that what the promotion selection boards did was correct.

5.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for those board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

6.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The applicant failed to show an error or an injustice.  In view of the facts of this case, there is an insufficient evidentiary basis to support his promotion.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20100025465



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ABCMR Record of Proceedings (cont)                                         AR20100025465



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