IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120006410 


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 as an exception to policy to the rank of Chief Warrant Officer Five (CW5) by a Special Selection Board (SSB) for the Fiscal Year (FY) 2009, 2010, and 2011 CW5 Promotion Selection Boards.

2.  The applicant states, in effect, that he met and exceeded the qualifications for advancement and he had more staff experience than any of his peers; however, that was used as a disqualifier instead of an advantage.  He goes on to state that with more than 12 years of Joint and Senior Staff experience and being qualified as an Equal Opportunity/Department of Defense Mediator he was clearly separated from his peers as no one now or then has had these unique qualifications; however, they were overlooked by the selection boards who concentrated on operational assignments.  He continues by stating that he has had two operational assignments and three combat deployments and his education level exceeds any of his past peers who were selected for promotion to CW5.  He also states that this Board is his last option before seeking legal action to correct this injustice.

3.  The applicant provides a copy of his:

* request for promotion reconsideration
* evaluation reports and awards
* Officer Record Brief (ORB)


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as an Adjutant General Corps warrant officer one on 30 September 1994.  He was promoted to the rank of Chief Warrant Officer Two (CW2) on 30 September 1996, Chief Warrant Officer Three (CW3) on 1 August 2001, and Chief Warrant Officer Four (CW4) on 1 April 2006.

2.  The applicant was considered and non-selected for promotion by the
FY 2009, 2010, and 2011 CW5 Promotion Selection Boards.

3.  On 22 January 2012, the applicant submitted a request for reconsideration for promotion to CW5 by the FY2010 and FY2011 Promotion Selection Boards based on an error on his complete-the-record Officer Evaluation Report (OER).  However, his request was returned without action based on guidance that complete-the-record reports were optional and did not constitute a basis for reconsideration.

4.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command (HRC) promotions branch that opines the exact reasons for the applicant’s non-selection for promotion to CW5 are unknown as promotion boards are prohibited from disclosing reasons for selection or
non-selection.  However, the applicant submitted a letter for review by the FY2011 selection board wherein he expressed many of his concerns and highlighted what he believed important for the board to consider.  Officials at HRC opined the applicant had received fair and equitable consideration for promotion and recommended denial of the applicant's request.

5.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded by submitting a four-page response, copies of redacted ORBs of four warrant officers who were either selected for or promoted to CW5, and a copy of an overview of the Goldwater-Nichols legislation.  In his four-page response he contended that he was a victim of institutional discrimination and disparate treatment environments created by the promotion selection boards in that they covertly adopted as a method to disqualify individuals for promotion by identifying those deemed as homesteaders and those assigned to joint commands.  He goes on to explain that the Goldwater-Nichols Act was created to afford equality to commissioned officers serving in joint assignments.  He continues by stating that it should apply to warrant officers and enlisted personnel as well; however, it is not and it serves as an injustice to those considered and not selected based on those covert promotion selection board practices.

6.  Army Regulation 600-8-29 (Officer Promotions) provides the policies and procedures for convening SSBs.  It provides that SSBs are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s non-selection by a promotion board.  Had such errors been corrected at the time the individual being considered, a reasonable chance would have resulted in that the individual would have been recommended for promotion.  Headquarters will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Department of the error and providing any relevant documentation.

7.  Army Regulation 600-8-29 also provides that an officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to their consideration.  Any written communication considered by a selection board will become a matter of record and will be maintained with the records of the board for 1 year.  Board members must take an oath that they will not divulge the proceedings or results thereof pertaining to the selection or non-selection of individual officers except to proper authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be granted an exception to policy and reconsideration by SSBs for promotion to the rank of CW5 under the FY2009, FY2010, and FY2011 criteria based on his claim of institutional discrimination and disparate treatment created by promotion selection boards has been noted and appears to lack merit.

2.  It is a well-known fact and practice that board members are not allowed to divulge the proceedings or results thereof pertaining to the selection or
non-selection of individual officers.  Therefore, the applicant's contention that his non-selection was based on the biases of board members regarding homesteading and that the board did not properly consider his joint experience is, at best, speculative on his part.

3.  The bottom line in this case is that the applicant was not selected for promotion to the rank of CW5 by the FY 2009, 2010, and 2011 Selection Boards and he has failed to show sufficiently convincing evidence to support his 


contention that the reason that caused his non-selection was that the board did not properly consider his records, especially since he provided the selection board with a memorandum highlighting what he believed was important for the board to know.

4.  While it is unfortunate that the applicant has not been selected for promotion to the rank of CW5, it is also a well-known fact that not all officers are selected by promotion boards because there are always more officers eligible than there are authorizations to promote.  If such was not the case, there would be no need to have a selection board.

5.  Accordingly, it would be inappropriate to second-guess the members of the three selection boards who had the opportunity to compare the applicant's records with those of his peers without sufficiently convincing evidence of an error or injustice.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120006410



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ABCMR Record of Proceedings (cont)                                         AR20120006410



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