MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 March 1999                   
	DOCKET NUMBER:   AC98-05887
				   AR1999016558

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be reinstated to active duty as a Chief Warrant Officer Three (CW3) effective 1 June 1996, and that all rights, privileges, and property be restored to him.

APPLICANT STATES:  That his name was removed from the FY 95 CW3 promotion list by the Secretary of the Army, but was not removed in accordance with Title 10, USC.  He was promoted to CW3 pursuant to 10 USC, section 578, and in order to be removed from that promotion list, the removal had to be done in accordance with Title 10 USC, section 579.  He had already been promoted to CW3 and then two months later his promotion was revoked.

On 29 July 1996, he was notified by Promotions Branch of the Total Army Personnel Command (PERSCOM), that he had been “flagged”, effective             3 April 1996, and that his records would be reviewed by an Army promotion review board to determine his promotion status.  On 12 November 1996 a DA promotion review board recommended that he be removed from the promotion list, and this recommendation was approved by the Secretary of the Army on    18 April 1997.  Subsequent to his removal from this list, he was non-selected for promotion to CW3 by the next regularly scheduled promotion board, and will separate from the Army on 1 March 1998 and enlist in the Regular Army on        2 March (NOTE:  The applicant is currently a Staff Sergeant assigned to Fort Eustis, Virginia). 	

He has submitted three officer evaluation report appeals to PERSCOM and all three have been returned without action.

He quotes Title 10 USC, Part II, chapter 33A, section 579(b):  “The Secretary concerned may remove the name of a Warrant Officer who is on a promotion list as a result of being recommended for promotion by a selection board convened under this chapter at any time before the promotion is effective.”

He states that he was promoted pursuant to 10 USC, section 578, and was not removed until 18 April 1997, in direct conflict with 10 USC.  The promotion review board recommendation to the Secretary of the Army is pursuant to 10 USC, section 629, which was not the authority for his promotion.  The only legal code to justify his removal would be 10 USC 579, which states that removal may only be done before the promotion is effective, in his case prior to 1 June 1996.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was promoted to CW3 effective 1 June 1996.

On 22 July 1996 PERSCOM notified the applicant that a review of his official military personnel files (OMPF) revealed that he received a referred OER which was not seen by the board which recommended him for promotion, and accordingly, his records would be referred to a DA promotion review board (PRB).  He was in a non-promotable status until a final determination was made and his records were “flagged”.  He was notified that he had 30 days to submit any information in his behalf attesting to why he should be retained on the promotion list, or to submit an OER appeal.

The aforementioned OER, for the period 13 January 1996 through 3 April 1996, is a relief for cause report, and shows that the applicant was cited for driving under the influence of alcohol during the rating period, and for disobeying a lawful order from his company commander.  The applicant’s rater stated that he met requirements, but he should not be promoted.  His intermediate rater, and senior rater concurred with the comments of the rater.  His senior rater placed him in the third block from the top in the potential evaluation portion of that report, below center of mass.

The applicant acknowledged in his comments to the referred OER that he made an error in judgment, but stated that the report was unsubstantiated in areas such as professional ethics, duty performance, and potential for promotion.  He stated that he did not, in effect, disobey a lawful order from this company commander, who ordered him to take a breathalyzer test, but instead took a blood alcohol test in order to ensure accuracy.  He was in no way being disrespectful or disloyal to his company commander.  He stated that he had always exceeded duty performance requirements, and that all his tasks and duties were efficiently performed.  His commander had submitted a request for a Meritorious Service Medal for him during the rated period.  He states that the “do not promote” was a slap in the face.  He made a mistake, but that mistake had no bearing nor would it, on his duty performance.

Also a part of the PERSCOM notification to the applicant is a copy of a              DA Form 268, Report to Suspend Favorable Personnel Actions (Flag), signed by the Chief of the PERSCOM Promotions Branch on 2 July 1996, with the effective date of the flag 3 April 1996 [the thru date of his relief for cause OER].

On 12 November 1996 a DA PRB convened to reconsider the cases of officers being referred, and on 18 February 1997 recommended that the applicant be removed from the promotion list.  There was no legal objection to the board’s recommendation.  The Secretary of the Army approved that recommendation on 18 April 1997.  

On 28 April 1998 the PERSCOM Promotions Branch reviewed the applicant’s request to this Board, providing much of the aforementioned information, and also indicated that under the provisions of Army Regulation 600-8-29, an officer’s promotion is automatically delayed if the officer receives a referred OER before the date he would otherwise have been promoted, that was not considered by the board that selected him for promotion.  In the review, the Chief of the Promotions Branch also stated that the applicant’s records were sent before a PRB, and that PRB policy, standards, and procedures are governed by law under Title 10 USC, section 579 and Army Regulation 600-8-29, chapter 8.  He went on to say that the PRB was forwarded to The Judge Advocate General for a legal review, and that office voiced no objection to the board.  The PRB was briefed to the Director of Military Personnel Management, the Assistant Secretary of the Army for Manpower and Reserve Affairs, the Director of the Army Staff, and the Chief of Staff of the Army, prior to approval by the Secretary of the Army.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the legal advisor to the Army Review Boards Agency. That official opined that the applicant’s promotion was automatically delayed in accordance with Army Regulation 600-8-29 because he received a referred OER prior to his promotion date, which was not viewed by the board that selected him for promotion.  That official stated that the regulation implements 10 USC section 579 which states a warrant officer may be removed from a promotion list at any time before the promotion is effective, and that the language in the regulation, which states that the officer’s promotion is automatically delayed is the basis for the rescinded promotion.   

In his 1 February 1999 rebuttal to the advisory opinion (COPY ATTACHED), the applicant stated that 10 USC section 578(e) states:  “A warrant officer who is appointed to a higher grade under this section is considered to have accepted such promotion on the date on which the appointment is made unless the officer expressly declines the appointment.”  He goes on to say that AR 600-8-29, paragraph 1-18 states that an officer is considered to have accepted the promotion on the effective date announced in the promotion officer, unless he declines the promotion in writing, and that if he was to be removed from the promotion list in accordance with law, it had to be done prior to 1 June 1996.  Army regulations have to reflect law, and cannot change it.  He states that the advisory opinions are merely trying to defend the removal action.  He states that PERSCOM backdated a ”flagging” action and initiated a special promotion review board to consider removal of his name from the promotion list.

The applicant reiterates the provisions of 10 USC section 579(b) which states, in effect, that a warrant officer on a promotion list may be removed at any time before the promotion is effective, and no matter what the Army regulation states, the US code is clear that a removal must be done before the effective date of the promotion.

Army Regulation 600-8-29 prescribes officer and warrant officer promotion policies and procedures, and incorporates provisions of the Defense Officer Personnel management Act as specified in sections 557 through 563 and 601 through 640, title 10, United States Code, and provisions of the Warrant Officer Management Act as specified in sections 571 through 583, title 10, United States Code.  Paragraph 1-18a states: “Unless an officer declines a promotion in writing under the provisions of chapter 5, he or she is considered to have accepted promotion on the effective date announced in the promotion order.”

Paragraph 1-19a states:  “An officer’s promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotion orders when the officer is-- … (6) Under, or should be under, suspension of favorable personnel actions (AR 600-8-2). … (9) The recipient of a referred Academic Evaluation Report (AER), a referred Officer Evaluation Report (OER), or a Memorandum of Reprimand (directed for filing in the official military personnel file before the date he or she would otherwise have been promoted) which was not considered by the board that selected him or her for promotion.”    

Paragraph 1-20 concerns delay of promotion, and is quoted in part:  “a. The promotion of any officer who is in a nonpromotable status is automatically delayed.  DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the delay.  The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible (AR 600-8-2).  If a DA Form 268 is in effect at the time an officer’s name is announced on a promotion list, the officer’s commander will immediately notify him or her of the reason for the delay.”

     “b.  Delays under this provision will be resolved within 6 months of the date the officer would have been promoted. … Additionally, a ‘further period of delay’ is deemed to have been granted in any case that has been referred to a promotion review board; the delay in such cases extends until the SA takes final action.”

     “c.  If within 6 months after the effective date of promotion, new information results in a determination by HQDA that an officer was, on the effective date of the promotion, in a nonpromotable status, that promotion will be deemed to have been automatically delayed.  In such a case, the officer’s promotion is void and the order announcing the promotion will be revoked.”

Paragraph1-22a, is quoted in part: “a.  A promotion order will be revoked when an officer declines promotion … or a higher commander, determines that the promotion is void because of one or more of the following:  (3) The officer was in a nonpromotable status on the effective date of the promotion.”   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The information provided by the applicant concerning title 10 USC, sections 578 and 579, relative to promotion of warrant officers, effective date of promotion, acceptance of promotion, and removal from a promotion list, is nonarguable.  He accepted the promotion to CW3 on the effective date,               1 June 1996, and, section 579 states, in effect, that the Secretary concerned may remove the name of a warrant officer … at any time before the promotion is effective.   

2.  The applicant, however, was in a nonpromotable status, prior to the effective date of his promotion, in fact, on 3 April 1996, the thru date of his referred OER, albeit the notification to him and the suspension of favorable personnel actions occurred after the effective date of his promotion.  And, notwithstanding his exhortations to the contrary, the action taken to delay his promotion to CW3 was correct.  And, subsequent to that action, the decision to remove the applicant from the promotion list as recommended by the promotion review board was proper and in accordance with regulations.  The applicant should not have been promoted on 1 June 1996, officials recognized this, and proceeded accordingly.    
3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____rvo_  ____ew__  __gcm___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05887/AR1999016558	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990303	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.131.02		
2.		
3.		
4.		
5.		
6.