MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            23 February 2000  
	DOCKET NUMBER:   AR2000036104

	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:

	Mr. Raymond v. O’Connor		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 9 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 9 days short of his 18-year lock-in because the Army increased the zone of eligibility for promotion for Technical Services Warrant Officers from 12 months to 18 months resulting in his being in the primary zone of consideration a year earlier than he normally would have.  He also notes that while he has a statutory right to revert to enlisted status upon separation, doing so would cause a significant reduction in income and impose a hardship on him and his family.  He states that “his service record is very good” and that “the U.S. Army has invested a lot of time and money in developing [his] skill…[and]…retaining [him] at the present rank and making full use of [his] training and expertise” will be most beneficial to Army.  He notes that he has “faithfully served [his] country for almost 18 years” and asks “for consideration of this request for not only my future, but for my family’s future.” 

In support of his request he submits endorsements by his chain of command and an internal routing form initiated by the Retirement and Separations Branch at the Total Army Personnel Command.  (NOTE: Telephonic communication with Retirement and Separations Branch indicated that they were not aware, nor was it their intention that the internal routing form be part of the applicant’s application to the Board and as such has been withdrawn.)

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

He entered active duty as an enlisted soldier on 10 March 1982 and was trained as a veterinary food inspector (specialty 91R).  He was promoted to pay grade 
E-6 in 1987.

On 24 October 1991 he was discharged for the purpose of accepting an appointment as a warrant officer.  He was appointed as a WO1 effective 
25 October 1991 in specialty 640A (Veterinary Technician).  He was promoted to CW2 on 25 October 1993.  In 1994 and 1996 he was awarded Army Commendation Medals and in 1999 he received his BS degree in liberal arts from Regents College, New York.

A review of the applicant’s OER history shows that the applicant was a solid center of mass officer with his senior raters always placing him in the second block.  While his reports documented the accomplishments of the applicant during the specific rating periods they also included comments such as “has performed well, promote as soon as possible” and “is fully qualified for promotion.”  His most recent report (981211-990902) noted that his “strengths are his intellectual curiosity and good humor.  His weakness is a difficulty in identifying and completing his highest priorities first.”

The applicant was considered by the FY1998 and 1999 CW3 Promotion Selection Boards and was non-selected by both boards.  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 board.  As a result of his second non-selection 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 supporting statements from the applicant’s chain of command note, in effect, that he is an expert in food safety and sanitation and in particular that his knowledge of the seafood industry makes him particularly invaluable to the command.

The Army is currently authorized approximately 57 warrant officers in specialty 640A with an anticipated end strength of 63 in FY00.  The May 1999 CW3 promotion selection board selected 4 out of the 6 eligible CW2s who were in the primary zone for consideration for promotion to CW3 in specialty 640A.  Only 1 of the 3 CW2s being considered above the zone of consideration (like the applicant) was 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 5 (ceiling) CW2s for promotion to CW3 in specialty 640A but did not have a minimum (floor) selection goal.

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.

Section 580 of Title 10, USC states that a regular chief warrant officer who has twice failed to be selected for promotion to the next higher regular warrant officer grade shall be involuntarily separated if the warrant officer described has less than 18 years of creditable active service on the date on which the Secretary concerned approves the report of the board unless the individual concerned will have at least 18 years of creditable active service on the date on which he is to be separated.  The date of such separation shall be not later than the first day of the seventh calendar month after the Secretary approves the board.  The May 1999 CW4 selection board was approved in August 1999.
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 rater regarding the applicant’s inability to identify and complete his highest priorities first.

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, 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 the stigma of the applicant’s non-selection for promotion, his separation would be in accordance with established laws and regulations.  Regrettably in this age of dwindling resources and strength reductions, the Army does not guarantee that every soldier who hopes to retire will be able to do so.  While Title 10 USC provides that soldiers with 18 or more years may be retained it is the unfortunate reality that some soldiers will fall short of that benchmark, some by a few days, some by a few months.  But the fact remains that the benchmark is 18 years and the Board maintains that in the absence of substantial evidence that an error or injustice has occurred, retaining soldiers merely to reach that benchmark would, in effect, only serve to circumvent the law.  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 number of soldiers in the applicant’s specialty exceeds the number of authorized positions.

5.  The Board also notes that the applicant does have the option of reverting to enlisted status in pay grade E-6 (with 4 years credit for pervious service in that grade) in order to complete sufficient service for retirement purposes.  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

__RVO___  ___EB___  __RJW___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036104	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
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         1.338	110.00	
2.		
3.		
4.		
5.		
6.