MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 February 2000
	DOCKET NUMBER:   AR2000036158

	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. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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 5 months so as to allow him to meet his 18-year lock-in to reach retirement eligibility.

APPLICANT STATES:  In effect, that he recently assumed the position as a helicopter detachment commander in Puerto Rico and has “not been able to stabilize for one year as [his] orders read.”  He notes that with one exception “close scrutiny of [his] military service reveals that [he is] an excellent soldier who has dedicated [his] career to the military.”  He states, in effect, that it was at his ex-wife’s initiation that unfavorable action was entered in his permanent file at a time when his “ex-wife wanted to destroy [his] military career so that she could get custody of [their] son.”  Since then, he notes that the “courts have decided that, in the best interest of [his] son, [he] would receive parental custody.”  

He states that if released from active duty on 1 March 2000 he will have over seventeen years and eight months of military service and feels that because of his “experience and knowledge” he still has “great potential to offer” his command and the Army.

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 was withdrawn.)

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

He entered active duty on 28 July 1982 for the purpose of attending warrant officer flight training.  On 24 August 1983, upon successful completion of flight training the applicant was discharged and appointed as a USAR WO1 with immediate call to active duty in specialty 153D (UH-60 PILOT).  He subsequently qualified as an instructor (153DC) and was promoted to CW3 on 1 November 1992.

His awards include four Army Commendation Medals and a Meritorious Service Medal awarded in 1991.

The applicant’s performance evaluation reports since his promotion to CW3 have consistently been solid center of mass ratings with his senior raters placing him in the first or second blocks.  However, in March 1994, just two months after receiving his Regular Army appointment, the applicant was relieved for cause when he “displayed poor judgement and professional misconduct through admitted adultery while deployed on OCONUS training mission.”  While his senior rater did note that the applicant’s “job performance during this rating period has been excellent” he also indicated that the applicant’s “potential makes his demonstrated lack of moral character by the commission of adultery during a unit deployment all the more tragic.”

In addition to the relief for cause evaluation report the applicant received a general officer letter of reprimand on 28 April 1994 for an “improper relationship” which “compromised [his] position and authority within [his] unit and brought discredit upon [him].”  The letter noted that the applicant “participated in an improper relationship and committed the offense of adultery” while “deployed to Antigua, West Indies from 9 February 1994 until 21 February 1994….”  The applicant acknowledged receipt of the reprimand but chose not to make any statements.  It is filed in his Official Military Personnel File.

The applicant’s most recent evaluation report (980530-990226) was by far his strongest report and his senior rater rated him “above center of mass.”

The applicant was considered and not selected for promotion to CW4 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 CW4 his mandatory separation date was established as 1 March 2000.

The two supporting statements from the applicant’s chain of command note that the applicant is an outstanding officer who is totally dedicated to the command’s mission.  Both authors recommended the applicant be retained and noted that he will continue to be a valuable asset.

The Army is currently authorized 214 warrant officers in specialty 153DC (instructor pilot) of which the Officer Distribution Plan (ODP) supports 200 positions.  There are 229 warrant officers in specialty 153DC currently on the Army roles.  In the broader category of specialty 153D (UH-60 pilot) the Army supports 692 warrant officer positions in the senior ranks (CW3/CW4/CW5) and have 757 on the roles.  The May 1999 CW4 promotion selection board selected 26 out of the 43 eligible CW3s who were in the primary zone for consideration for promotion to CW4 in specialty 153D.  Only 2 of the 25 CW3s being considered above the zone of consideration (like the applicant) were selected for CW4.  There were 2 warrant officers selected for promotion from below the zone for a total selection number of 30.  The promotion selection board was directed to select at least 6 (floor) CW3s for promotion to CW4 in specialty 153D but not more than 36 (ceiling).

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.

A warrant officer separated as a result of a second non-selection for promotion is entitled to receive separation pay.

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.  The Board notes that the evidence of record indicates that the applicant admitted to an adulteress liaison while deployed on a training mission and as such received a general officer letter of reprimand and was relieved for cause.

2.  While the Board can only speculate on the reasons the applicant was not selected for promotion to CW4 there is no evidence of any error or injustice in his non-selection.  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.

3.  The Board also notes that while the promotion selection board could have selected a total of 36 CW3s for promotion to CW4 in the applicant’s specialty it elected to only select 30.  Clearly the promotion selection board was well aware that some of the officers non-selected for promotion would face involuntary separation.  None the less, 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 or to retain soldiers solely to enable them to meet retirement eligibility.

4.  The number of warrant officers in the applicant’s broad specialty of 153D and more specialized area of 153DC currently exceeds the number of positions supported by the Army.  Notwithstanding that fact the Board does not believe that retaining individuals simply to fill vacancies or to achieve retirement eligibility 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.  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

__clg ___  ___mw__  ___ao___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036158	
SUFFIX		
RECON		
DATE BOARDED	2000/02/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.