MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            11 February 2000      
	DOCKET NUMBER:   AR2000035598

	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 permitted to remain on active duty until he completes 20 years of active duty. 

APPLICANT STATES:  He believes that it is in the best interest of the Army to retain him on active duty in spite of the fact that he faces mandatory separation as a result of being non-selected for promotion to CW3.  He states, in a self-authored statement, that his specialty (351B –Counterintelligence Technician) is “critical to the protection of U.S. Army assets…and is currently under strength.”  He states that the “command is already extremely short of personnel with the technical expertise, training, and knowledge [he] already possesses.”  His request is supported by his chain of command.

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

He entered active duty as an enlisted soldier in April 1982 and initially received training and performed duties in the administrative field.  In 1986 he reenlisted for training in the counterintelligence field (specialty 97B).  He was promoted to pay grade E-6 in 1989.  His records as an enlisted soldier indicate that between 1983 and 1990 he was awarded two Army Commendation Medals, four Army Achievement Medals and one Joint Service Commendation Medal.

On 8 December 1991 he was discharged from his enlisted status for the purpose of accepting an appointment as a warrant officer.  His appointment as a WO1 was effective 9 December 1991 with immediate call to active duty.  In December 1993 he was promoted to CW2.

The applicant was awarded two Army Commendation Medals (1993 and 1997) and in 1998 he was awarded a Joint Service Commendation Medal.  In 1999 he received a BS degree in liberal arts from Regents College, New York.

His officer evaluation reports generally indicate he was rated as a center of mass officer.  However, in one report (931210-941209) he was rated below center of mass.  Comments concerning his promotion potential on his evaluation reports include such statements as “should be promoted, promote ahead of peers, promote at earliest opportunity, and promote immediately.”

The statement by the applicant’s immediate commander, submitted in support of the applicant’s request to this Board, notes that the applicant “is not among the top performers of my 11 assigned Warrant Officers” and that the applicant “lacks the basic level of leadership displayed by his peers throughout the Company, and that he is more reactive than proactive.”  The commander, nonetheless, noted that there was a critical shortage of officers in the applicant’s specialty and that the applicant “can continue to provide much needed support….”

The applicant’s battalion and group commanders merely indicated their support of the applicant’s petition to remain on active duty by lining through the word “disapproval” when given the option of recommending “approval or disapproval” on their endorsements.

The applicant was considered and not selected for promotion to CW3 by a promotion board convened in May 1998 and a second board convened in May 1999.  Following his second non-selection for promotion, the applicant was notified that “in its comparative judgment of future potential, the [promotion] board considered such factors as performance reflected by Officer Evaluation Reports, assignments, military and civilian training and education.”  The letter of notification informed the applicant that his “non-selection reflects the unavoidable fact that not all of our highly professional officer corps can be promoted through each successive grade.”  As a result of his second non-selection for promotion to CW3 his mandatory separation date was established as 1 March 2000.

The Army is currently authorized 239 junior warrant officers (WO1 and CW2) in specialty 351B and that there are only 200 warrant officers in that specialty on the Army roles.  Additionally, there are 141 authorizations for senior warrant officers (CW3/CW4 and CW5) in specialty 351B and only 94 on the Army roles.  The May 1999 CW3 promotion selection board selected 20 out of the 30 eligible CW2’s who were in the primary zone for consideration for promotion to CW3 in specialty 351B while the board did not select any of the 7 CW2’s who, like the applicant, were being considered above the zone of consideration for CW3.  There were no warrant officers selected for promotion from below the zone.  The promotion selection board was directed to select at least 14 (floor) but no more than 26 (ceiling) CW2’s for promotion to CW3 in specialty 351B.

The May 1999 promotion selection board only considered CW4s who were second time non-selects for promotion to CW5 for selective continuation.  Other warrant officers non-selected for a second time were not considered for selective continuation.

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. 

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

2.  The Board also notes that while the promotion selection board could have selected a total of 26 CW2s for promotion to CW3 it elected to only select 20.  The fact that the board did not select the total number it could tends to support a conclusion that the promotion board likely felt that the records of the officers who were not selected were not strong enough to warrant selection for promotion merely to meet a selection number ceiling.

3.  While the Board is cognizant of the fact that the Army as a whole is facing a shortage of warrant officers in specialty 351B it 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.

4.  The Board does note that the applicant has the option of reverting to enlisted status in order to complete sufficient service for retirement purposes, and although 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.

5.  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.

6.  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	AR2000035598	
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.