IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110004542 


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 reinstatement of his promotion to Chief Warrant Officer Three (CW3).

2.  The applicant states his promotion status and timely notification were carelessly and unjustly withheld.

3.  The applicant provides:

* self-authored statement
* letter from spouse
* letter of commendation
* 2 Certificates of Achievement
* 2 Certificates of Commendation
* Permanent Change of Station (PCS) orders
* DD Form 214 (Report of Separation from Active Duty)
* Army Selection Board Letter of Instructions
* letter of late notification

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 Army Board for Correction of Military Records (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, and 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.  After having had prior service, the applicant was appointed as a Warrant Officer One (WO1) with military occupational specialty (MOS) 271A (land combat missiles repair technician) on 15 December 1967 and entered active duty that date.  The highest rank he attained while serving on active duty was Chief Warrant Officer Two (CW2).

3.  During the period 2 through 6 December 1974, a promotion board convened for the purpose of recommending warrant officers for promotion to the grades of Chief Warrant Officer Four (CW4) and CW3.  The applicant was in the primary zone of consideration for promotion to CW3.

4.  On 10 December 1974, the applicant submitted a request for voluntary retirement through his chain of command.  He requested to be placed on the retired list effective 1 June 1975.

5.  On 11 February 1975, the applicant's voluntary retirement request was approved.

6.  On 28 February 1975, the promotion board adjourned.

7.  On 15 April 1975, the results of the promotion board were released.  The applicant's name appeared on the selection list for promotion to CW3.

8.  There is no evidence in the available record which shows the applicant requested to withdraw his approved retirement.

9.  The applicant provided a letter of late notification, signed by his division Adjutant General, dated 30 April 1975.  The letter states that "due to lack of prior notification individual did not have prior knowledge of his promotion status."

10.  The applicant's self-authored letter states, in effect, his chain of command and Administrative Control Branch denied him access to information pertaining to his promotion status before and after he submitted his retirement request.

11.  The applicant contends he was forced to decline his promotion to CW3 because he had no prior knowledge of his promotion status until 30 April 1975, the day he was scheduled to depart to his retirement station.

12.  The applicant argues, by the time he was notified of his selection for promotion he had sold his house, shipped his furniture, taken his children out of school, and was living in a motel.

13.  The applicant states, "Accepting the promotion required I remain at Fort Lewis an additional six months which, any way you look at it, would impose an extreme unnecessary hardship on my family.  Serving the six months at Fort Lewis or declining the promotion became the only options available." 

14.  Army Regulation 635-100 (Personnel Separations - Officer Personnel), in effect at the time, states in paragraph 4-12e that an officer who has an approved retirement pending, and who subsequently is selected for promotion, has the option to withdraw his or her retirement application and accept the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reinstatement of his promotion to CW3 was carefully considered and determined to lack merit.

2.  Based on the applicant's personal statements it is clear that he understood that he had the option to withdraw his retirement and accept the promotion to CW3.

3.  The applicant was provided with two options -- promotion or retirement.  The applicant chose to retire.

4.  Soldiers, enlisted personnel and officers, who are intent upon furthering their careers are keenly aware of when their applicable promotion boards meet.  They are particularly aware of when they will be in the zone of consideration because that is when they must take special care to ensure their records are up-to-date.

5.  From history (that is, from prior promotion board actions) the Soldier knows that shortly after convening, the promotion board adjourns. 

6.  The applicant applied for retirement before the promotion board adjourned, and before the results of the board were released.  It is reasonable to conclude, based upon the timing of the applicant's retirement request, he was not interested in knowing the results of the promotion board or in furthering his career.  Accordingly, it would be inappropriate to grant the applicant's request.
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 that 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)                                         AR20110004542



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ABCMR Record of Proceedings (cont)                                         AR20110004542



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