MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            11 February 2000      
	DOCKET NUMBER:   AR2000035236

	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.

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 selectively continued on active duty for at least 44 days so as to allow him to meet his 18-year lock-in to reach retirement eligibility.

APPLICANT STATES:  In effect, that he was placed in the position of being 44 days short of his 18-year lock-in because the Army separated the technician warrant officers from the aviator warrant officers and increased the zone of eligibility for promotion of the technicians resulting in his being in the primary zone of consideration a year earlier than his aviation peers.  He also notes that while he has a statutory right to revert to enlisted status upon separation, doing so would cause a 40 percent reduction in income and impose a hardship on him and his family.  He states that “given the circumstances surrounding the expanded zone of consideration, the undue financial hardships on [his] family and [his] service and experience” it would be in the best interest of the Army to approve his request.  Members of his chain of command support his request.

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

He served an initial period of active duty between 1977 and 1979 and performed duties in the medical field.  In May 1984 he reenlisted to return to active duty in the Air Defense Artillery field (specialty 24U, which is no longer in the Army’s inventory).  What remains of his enlisted personnel records, however, indicates that while he was assigned to Air Defense Artillery units following his 1984 reenlistment he was promoted to the grade of E-6 in his original medical specialty (91B) and specialty 24U was assigned as a secondary specialty.

As an enlisted soldier, his records indicate he was awarded an Army Achievement Medal for his services during Operation Desert Shield/Storm between August 1990 and January 1991.

On 4 February 1992 he was discharged for the purpose of accepting an appointment as a warrant officer.  He was appointed as a WO1 effective 
5 February 1992 in specialty 140E (Patriot System Technician).  He was promoted to CW2 on 5 February 1994.  In 1997 and 1998 he was awarded Army Commendation Medals and in February 1999 he received his BS degree in liberal arts from Regents College, New York.

The applicant was considered by the FY1998 and 1999 CW3 Promotion Selection Boards and was non-selected by both boards.  Accordingly, he was informed that he faced a mandatory separation date not later than 1 March 2000. The applicant was in the primary zone of consideration (CW2 DOR 921001 thru 940331) for the FY1998 board and above the zone (CW2 DOR 940331 and earlier) for the FY1999.

A review of the applicant’s OER history shows that the applicant was a solid center of mass officer.  He did, however, have one performance report (950927-960115) where his senior rater placed him above center of mass (a total of 15 officers had received ratings, 5 were in the top block, including the applicant, and 10 were in the second block).  With the exception of reports rendered just prior to the 1998 and 1999 promotion selection boards, which noted the applicant should be promoted immediately, his reports contained comments such as “promote upon DA selection, promote to CW3, and promote early.”

The supporting statements from the applicant’s chain of command note that the applicant has served honorably for more than 17 years of active service, is a veteran of the Gulf War, and has done all that has been asked of him.  The Air Defense Artillery Center commanding general at Fort Bliss noted “we are in critical need of his skills.”

The Army is currently authorized 152 warrant officers in specialty 140E of which the Officer Distribution Plan (ODP) supports 140 positions.  There are 147 warrant officers in specialty 140E currently on the Army roles.  The May 1999 CW3 promotion selection board selected 5 out of the 8 eligible CW2’s who were in the primary zone for consideration for promotion to CW3 in specialty 140E.  Only 1 of the 5 CW2s being considered above the zone of consideration (like the applicant) were selected for CW3.  There were no warrant officers selected for promotion from below the zone.  The promotion selection board was directed to select no more than 6 (ceiling) CW2s for promotion to CW3 in specialty 140E but did not have a minimum (floor) selection goal.

Army Regulation 600-8-24, which establishes the policies and procedures for the separation of commissioned and warrant officers, states that chief warrant officers on the active duty list twice non-selected for promotion to the rank of CW3, CW4, or CW5 will be involuntarily released from or discharged unless they are, (1) selectively continued, (2) within 2 years of retirement (completes 18 or more years AFS on their scheduled release date), or (3) retired.  Chief warrant officers will be separated on the 1st day of the 7th calendar month after approval of the promotion board's report unless earlier release is voluntarily requested or retention on active duty in a Reserve status is approved by the Secretary of the Army or his or her designee.  A warrant officer who is within 2 years of qualifying for retirement under chapter 6 of this regulation (20 years active Federal service) on his or her scheduled release date and who can so qualify prior to attaining the maximum age will be retained on active duty until the last day of the month following the month he or she qualifies for retirement.  An officer's discharge under this paragraph will be under honorable conditions. 

Section 3258, title 10, USC states that any former enlisted member of the Regular Army who has served on active duty as a Reserve officer of the Army, or who was discharged as an enlisted member to accept a temporary appointment as an officer of the Army, is entitled to be reenlisted in the Regular Army in the enlisted grade that he held before his service as an officer, without loss of seniority or credit for service, regardless of the existence of a vacancy in his grade or of a physical disability incurred or having its inception in line of duty, if (1) his service as an officer is terminated by an honorable discharge or he is relieved from active duty for a purpose other than to await appellate review of a sentence that includes dismissal or dishonorable discharge, and (2) he applies for reenlistment within six months (or such other period as the Secretary of the Army prescribes for exceptional circumstances) after termination of that service. 

Officers involuntarily separated from active duty because of non-selection for promotion are entitled to separation pay equal to 10 percent of the amount of the officer's annual basic pay, times the officer's years and fraction of a year of active service.

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

1.  While the Board can only speculate on the reasons the applicant was not selected for promotion to CW3 there is no evidence of any error or injustice in his non-selection.  The applicant’s records indicate that while his performance was certainly successful it was not truly exceptional as evidenced by his consistent center of mass ratings.  The relatively low number of warrant officers selected for promotion to CW3 in his field was certainly a contributor but again is not an indication of any error or injustice in his non-selection.

2.  The increased zone of eligibility for promotion of the technician warrant officers, which the applicant states resulted in his being in the primary zone of consideration a year earlier than his aviation peers, is a situation that all technical warrant officers faced and as such did not, in an of itself, create an injustice for the applicant.

3.  Although the Board can certainly sympathize with applicant’s non-selection for promotion his separation would be in accordance with established laws and regulations.

4.  While the number of warrant officers in specialty 140E may not exceed the number of authorized positions in the Army they do currently exceed the number of ODP supported positions.  Notwithstanding that fact the Board does not believe that retaining individuals simply to fill vacancies is in the best interest of the Army.  In this particular case the Board does not believe that the applicant’s situation or record is so unique or outstanding that retention as an exception to established laws and policies is warranted.

5.  The Board also notes that the applicant not only has the option of reverting to enlisted status in order to complete sufficient service for retirement purposes, he will also receive a substantial amount of separation pay which should help to offset the reduction in pay resulting from his return to enlisted status.  While this may not be sufficiently comforting, it is an option not available to all officers facing involuntary separation as a result of promotion non-selection.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  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

___mkp__  ____gdp_  ___tbr__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035236	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000211	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.189	110.00	
2.		
3.		
4.		
5.		
6.