IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140002985 


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 four (CW4) as he should have been in 1996.

2.  The applicant states:

* in 1995, he was denied promotion to CW4 because he had been given a retaliatory officer evaluation report (OER) in 1988 while holding the rank of chief warrant officer two (CW2)
* he petitioned this Board to have the OER removed and his petition was approved; however, this led to having too many OERs as a CW2 and not enough as a CW3 
* he feels he was punished twice for the same OER; when the Board corrected the injustice, it allowed another to begin
* in order to fully understand what occurred in his case, one must read his current petition (enclosed) and previous appeal (enclosed) in its entirety as well as the findings of the Board at the time

3.  The applicant provides:

* Memorandum, dated 25 March 1992, Review of OER application             (19880901-19881231)
* Memorandum, dated 25 March 1992, Correction of Military Records
* Promotion Order Number 162-3, dated 21 August 1992
* Army Board for Correction of Military Records (ABMR) Docket Number AC91-09256, dated 20 August 1992
* DA Form 2823 (Sworn Statement), dated 25 September 1990
* OERs for the rating period 19871230-19880831, 19880901-19881231, 19900408-19910201
* Memorandum, dated 8 May 1991, from the Commanding General, I Corps
* Memorandum, dated 21 June 1990, appointment as Nuclear Survey Officer
* OER appeal memoranda, dated 10 and 16 July 1990 and 19 April 1991, from his former executive officer, a former sergeant, and a former Chemical Corps officer
* Multiple letters of support and/or supporting statements from various officers, noncommissioned officers, and others in relation to an OER
* Extract of Training Bulletin 9-1100-803-15
* Extract of Army Regulation (AR) 55-203 (Movement of Nuclear Weapons, Nuclear Components, and Related Nuclear Classified Non-Nuclear Material)
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and allied documents
* Deputy Chief of Staff for Personnel Officer Special Review Board Case Summary, dated 25 January 1994
* Memorandum, dated 16 April 1991, from the Office of the Inspector General (IG) to the Commander, U.S. Army Europe and Seventh Army
* U.S. Army Criminal Investigation Command Report of Investigation related to a missing locking device in Turkey
* Letter, dated 25 April 1989, from the applicant to the Department of the Army IG, Assistance Division
* Memorandum dismissing court-martial charges against another officer and related documents
* Extract of AR 50-5 (Nuclear Surety)
* DA Form 873 (Certificate of Clearance and/or Security Determination)
* Report of Survey and allied documents
* Personal letter from the applicant to the President of the United States
* Letter of Reprimand (LOR), applicant's response to LOR, and withdrawal of LOR by imposing officer
* Award certificates and multiple other OERs
* Self-authored narrative, dated 24 November 2014 regarding his promotion

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, 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, the applicant was appointed as a Reserve warrant officer of the Army with concurrent call to active duty and executed an oath of office on 15 May 1982.  

3.  He completed the Nuclear Weapons Technician Entry Course and the Nuclear Weapons Technician Advanced Course.  He was advanced to chief warrant officer two (CW2) on 14 May 1984 and he executed a Regular Army oath of office on 14 May 1987.  

4.  In or around December 1987, he was assigned to 70th Ordnance Company, 528th U.S. Army Garrison (USAG), Southern European Task Force (SETAF), as a nuclear weapons maintenance technician. 

5.  During January 1989, he received a Change of Duty OER covering the rating period 19880901 through 19881231 for his duties as a maintenance management officer while assigned to 70th Ordnance Company, SETAF, Turkey. His Rater rated his performance as "Usually Exceeded Requirements."  His Senior Rater rated his potential evaluation as "4" on a scale from High to Low with "1" being the highest and "9" being the lowest.   

6.  In or around January 1989, he was assigned to USAG, Fort Lewis, WA, with duty at the Directorate of Plans, Training, and Mobilization, as an operations officer, and then as a range operations officer. 

7.  In or around April 1990, he was assigned to Headquarters and Headquarters Company, I Corps, Fort Lewis, with duty at the G-3, as a nuclear effects officer and in September as a range facilities officer. 

8.  In 1992, he petitioned this Board for correction of his records by removing the contested OER (19880901-19881231), promotion consideration to CW3, and entitlement to back pay and allowances. 

9.  On 25 March 1992, the Officer Special Review Board reviewed the applicant's records as a result of his application to the ABCMR and recommended the contested OER be removed and the rating period be declared unrated.  Additionally, based on this removal, the Officer Special Review Board recommended the applicant's records be considered by a Special Selection Board (SSB) for promotion to CW3 under the 1989 criteria.

10.  On 20 August 1992, the ABCMR notified the applicant that as a result of the Officer Special Review Board review, the contested OER was removed and his records were considered by an SSB that selected him for promotion to CW3 with an effective date and date of rank of 1 January 1990. 

11.  On 21 August 1992, Order Number 162-3 promoted the applicant to CW3 with an effective date and date of rank of 1 January 1990. 

12.  In March 1993, he completed the Signal Systems Maintenance Technician WO Basic Course.  Also, in or around July 1993, he transferred to the 4th Aviation Regiment, Fort Carson, CO, as a company executive officer, and in October 1994, the 124th Signal Battalion, also as a company executive officer. 

13.  He retired on 31 December 1995 and he was placed on the Retired List in his retired rank of CW3 on 1 January 1996.  He completed 13 years, 7 months, and 17 days of warrant officer service (plus 9 years, 9 months, and 2 days of prior active service). 

14.  An advisory opinion was received from the U.S. Army Human Resource Command (HRC) on 18 April 2014.  An advisory official stated that based on the records and the information provided, HRC finds the applicant's request for reconsideration for promotion to CW4 by a SSB does not have merit.  

	a.  In its original determination, in ABCMR Docket Number AC91-09256, dated 26 August 1992, the Board directed the removal of a contested OER for the period 880901-881231 from his records.  It was replaced with a statement of non-rated time.  The applicant also received an SSB for reconsideration for promotion to CW3.  This resulted in his selection and promotion with a date of rank of 1 January 1990. 

	b.  There are no records available to support a claim that he was denied promotion to CW4 based on the retaliatory OER he received in 1988.  As noted in the documents he provided, the OER in question was removed prior to the SSB and his promotion to CW3; therefore, such report could not have existed for any additional boards. 

	c.  The exact reasons for the applicant's non-selection for promotion are unknown because statutory requirements set forth in Title 10, U.S. Code, section 613 prevent disclosure of board proceedings to anyone who was not a member of the presiding board.  It can only be concluded that the promotion boards determined the applicant's overall record when compared with the records of his contemporaries did not reflect as high a potential as those selected.  Any further comments, remarks, or statements regarding his non-selection are purely speculative. 

15.  In his response, dated 29 April 2014, to the advisory opinion he stated: 

* it does not appear HRC read his appeal or understood what actually happened 
* regardless of HRC's opinion, there is sufficient evidence to support his request for promotion
* he understands why HRC found him unfit for promotion; his record was lacking the necessary OERs 
* HRC's indication that they corrected the record, backdated promotion, and removed the OER is misleading
* although he was granted a date of rank of 1 January 1990, this did not happen until 1993; he spent almost 4 years being rated as a CW2
* When the CW4 promotion board met in 1995, he only had 4 OERs as a CW3; others had an average of 8 to 10; it was unfair to him
* when he called HRC about his then non-selection, he was told he did not have enough OERs in his records
* a senior officer at Fort Carson even confirmed to him (the applicant) that with this number of OERs he did not stand a chance 
* he served in very senior positions with a high level of responsibility and he received multiple awards, including the Legion of Merit and he also received outstanding OERs

16.  He provides, through his Member of Congress, a self-authored narrative, received on 24 November 2014.  He states:

* in 1992, U.S. Army investigators reviewed much of the documentation and determined those who were responsible did in fact perform outside the regulations
* their actions resulted in an unfair treatment even after an illegal OER was removed from his records 
* both officers (rater and senior rater) responsible for this matter were removed from the service
* he was denied promotion due to his backdated date of rank and lack of OERs at the grade of CW3
* the unit commander tried to blame him for a missing nuclear weapon locking device to cover for the person who actually lost the device
* the applicant was cleared of any wrongdoings and the contested OER was removed from his records 
* although promoted retroactively, the lack of OERs at the higher grade affected his promotion opportunities 
* he was forced out of the military by the illegal actions of those who failed their responsibilities 

17.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  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 ABCMR will decide cases on the evidence of record.  It is not an investigative body.

18.  Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  Chapter 7 provides for SSBs.  SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. 

	a.  Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:

		(1)  An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required).

		(2)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). 

		(3)  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).  

	b.  A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.
DISCUSSION AND CONCLUSIONS:

1.  The applicant provides a lengthy argument with substantive evidence related to the OER issue that occurred in 1988.  He had previously appealed the contested OER and as a result of his appeal and the facts he presented at the time, the Board granted him full relief in that it removed the contested OER and recommended his records go before an SSB.  He was promoted to CW3 effective 1 January 1990.   

2.  Once the OER was removed from his records, the SSB that considered him and any subsequent promotion boards had no visibility of that OER.  As such, this particular OER had no bearing on his promotion.  The substantive documentary evidence he provided in relation to this OER had no bearing on his subsequent assignments or potential for promotion. 

3.  He argues that due to the contested OER, his promotion was delayed and he did not receive a number of OERs in the rank of CW3 that is consistent with what other CW3s received.  However, neither the applicant nor HRC knows the reasons for his non-selection for promotion to CW4.  

4.  Selection boards use the "whole file concept" when making promotion recommendations.  Board members do not put undue focus on any one item.  Selection board members review all evaluation reports, a record of the officer's training history, civilian and military education and other critical elements, the photograph, and awards and decorations.  When looking at an OER, members review the entire document.  Selections are made against standing and selected Army requirements.  A single document within the totality of the file is not normally the deciding factor in the selection board decision. 

5.  Each 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 Instructions, 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.

6.  By law, promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the ABCMR 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 board did was correct.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the promotion board's recommendations are not known.  Further, the applicant would have been considered for CW4 during the 1990s drawdown, when promotions were even more competitive than usual.

7.  A non-selected officer can only conclude that a promotion selection board determined that his or her 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.  

8.  The ABCMR is not a promotion board; if and when it determines an error, the ABCMR directs an appropriate agency to take corrective action.  The corrective action with promotion issues is normally via an SSB.  In order to qualify for an SSB, there must be a material error.  He failed to show a material error and as such does not qualify for an SSB.  He is not entitled to the 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)                                         AR20140002985



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ABCMR Record of Proceedings (cont)                                         AR20140002985



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