MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000037156

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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:  That he be sent to the Maintenance Test Pilot (MTP) course as a retiree, be promoted to Chief Warrant Officer Three (CW3) for retirement purposes, and be awarded back pay to his date of promotion on or about January 1999.

APPLICANT STATES:  That in April 1998 he submitted a DA Form 4187, Personnel Action requesting attendance at the MTP course.  The request was maliciously and illegally sidelined instead of being forwarded to Department of the Army (DA) as required by regulation.  This course is a very important consideration for promotion boards.  Without it, promotion to CW3 is far less likely.  He contributed to the investigation against the major who committed this act and the battalion commander, his senior rater (SR).  When his SR discovered this, he was forced into a mental health evaluation without the required 48 hours notice.  The applicant then contacted the office of the Inspector General (IG).  In April 1999, he received an adverse officer evaluation report (OER).  A Commander’s Inquiry into the OER found absolutely no basis for such a report.  He then filed an Article 138 on the SR concerning the original DA Form 4187 incident.  The letter from his new brigade commander instructed DA to send him to the MTP course that had been owed to him before his passover for CW3.  DA wrote the commander back that he would be sent only if he were promoted to CW3 on the second look.  This was ridiculous because his promotion depended greatly on his attendance of the course.  Sure enough, he was passed over for the second time and forced into retirement without the course, which is extremely valuable in the civilian world.

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

After having had prior enlisted service, he was appointed a Warrant Officer One and entered active duty on 15 January 1991 in military occupational specialty 153D (UH-60 Pilot).  He was promoted to Chief Warrant Officer Two (CW2) on 19 December 1992. 

The applicant’s CW2 OER history is as follows:  (Note:  Part Vb includes rater performance check block ratings from a high of “always exceeded requirements” to “usually exceeded requirements,” “met requirements” and “often failed requirements” to a low of “usually failed requirements.”  Part Vc includes rater potential check block ratings from a high of “promote ahead of contemporaries” to “promote with contemporaries” to a low of “do not promote.”  Part VIIa is the SR’s potential block rating.  An asterisk indicates applicant’s rating.)

Period Ending	Part Vb	Part Vc		SR’s Block Rating

23 November 1992	Always…	Promote Ahead…	0/0/*1/0/0/0/0/0/0
1 March 1993	Always…	Promote Ahead…	4/7/*1/0/0/0/0/0/0
30 June 1993	Always…	Promote Ahead…	Unable to rate
22 April 1994		Always…	Promote Ahead…	0/0/*1/0/0/0/0/0/0
22 April 1995		Always…	Promote Ahead…	2/*3/0/0/0/0/0/0/0
15 December 1995	Always…	Promote Ahead…	0/*1/0/0/0/0/0/0/0
   (The rater commented that the applicant should be sent to the UH-60 MTP course with follow-on assignment in research and development.)

12 November 1996	Always…	Promote Ahead…	29/*12/0/0/0/0/0/0/0
   (The intermediate rater commented that the applicant was a competent warrant officer and aviator.)

10 March 1997	Always…	Promote Ahead…	*35/12/0/0/0/0/0/0/0
   (The rater commented that the applicant was an extremely competent warrant officer.  He fulfilled his mission on one short-warning deployment to Equador safely and effectively.)

30 September 1997	Always…	Promote Ahead…	51/*45/1/0/0/0/0/0/0
   (The rater commented that the applicant had shown the potential to be a great officer on several occasions.  He possessed knowledge and experience equivalent to his peers.  His intermediate rater commented that he intensely desired to do well and performed his duties well and had been an asset to the unit.  His SR commented “Continue to challenge ___ with demanding assignments where he will continue to develop his skills and earn the opportunity for promotion.”)

The following OERs were under the new system.  Part Vb combines the parts Vb and Vc in the previous OER version and includes rater performance/potential ratings from a high of “outstanding performance, must promote” to “satisfactory performance, promote” to a low of “unsatisfactory performance, do not promote.” Part VIIa is the SR’s promotion potential rating which range from a high of “best qualified” to “fully qualified” to “do not promote.”  The previous SR block ratings are now limited to ratings of “above center of mass,” “center of mass” or “below center of mass.”

18 March 1998	Satisfactory…	Fully…	Center of Mass
   (The rater commented that the applicant accomplished all of his assigned duties to the standard.  The SR commented that he continued to demonstrate on a daily basis the potential to be a contributing member of Army Aviation.)

1 September 1998	Satisfactory…	Best…	Center of Mass
   (His rater and intermediate raters commented he was an “excellent candidate” or a “must select” for the MTP course.  His SR commented he should be selected for promotion with his peers.)

22 February 1999	Unsatisfactory…	Do Not…	Below Center of Mass
   (His SR commented that the applicant’s lack of motivation and delusional behavior undermined the chain of command.)

A Commander’s Inquiry was conducted on the applicant’s last OER.  The investigating officer determined that there were no counseling statements or other documentation to support the negative comments on the OER.  In addition, there was no documentary evidence that the applicant exhibited “delusional behavior” and in fact two separate psychiatric analyses indicated there was no evidence that he had a mental defect or psychiatric disorder.  The investigating officer concluded the applicant’s rating chain did not fairly evaluate his performance and potential.

In April 1998, the applicant apparently requested attendance at the MTP course.
This request apparently was not forwarded to DA as required.

In May 1998, the Fiscal Year 1998 CW3 promotion selection board convened.  When the list was released around September 1998, the applicant had been nonselected for promotion.

In May 1999, the Fiscal Year 1999 CW3 promotion selection board convened.

On 7 June 1999, the applicant requested redress under Article 138, Uniform Code of Military Justice regarding the failure to forward his request for MTP course attendance to DA.  His brigade commander granted his request for redress by forwarding his original request to the approval authority.  His forwarding memorandum explained to DA that the original request was not properly forwarded, that he requested expeditious processing, and he advised DA that course attendance should be coordinated with the applicant’s gaining command.

DA apparently responded to the applicant’s brigade commander’s request by stating the applicant would be scheduled for MTP training provided he was selected for promotion.  DA’s response is not available.

In September 1999, the results of the Fiscal Year 1999 CW3 promotion selection board were released and the applicant was nonselected for promotion.  On         4 October 1999, he was notified that as a two-time nonselect he would be mandatorily released from active duty.  He retired on 1 February 2000 in the rank of CW2.

Aviation Branch, Warrant Officer Division, U. S. Total Army Personnel Command, has stated that the MTP course is not necessary for promotion.  A number of warrant officers have been promoted without attending the course.  It is important only in that, generally, prior to attendance at the course a warrant officer would work for a platoon leader; after attendance he would work for the company commander.  The increased level of responsibility should make his OERs look better.  However, promotion consideration still hinges primarily on performance;  i. e., the content of the warrant officer’s OERs are the most important consideration.  

Title 10, U. S. code, section 575 states that a promotion selection board shall recommend for promotion to the next higher grade those warrant officers considered by the board whom the board, giving due consideration to the needs of the armed force concerned for warrant officers with particular skills, considers best qualified for promotion within each grade.

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.  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 this requirement.

2.  The Board does not agree with the applicant’s contention that it was his failure to attend the MTP course that resulted in his nonselection for promotion.  The applicant was first made aware that attendance at the MTP course might be desirable when he received his OER for the ending period 15 December 1995.  He did not request attendance at the course until April 1998, one month before the promotion board convened.  MTP was a 4 and one-half months long course.  Even if the applicant’s DA Form 4187 had been properly forwarded to DA and DA could have scheduled him for a course beginning immediately, it would have been impossible for him to complete the course in time for the promotion board to have considered it. 

3.  The Board concludes that the first promotion selection board determined that the applicant’s performance record, as shown by his OERs, did not show him to be one of the best-qualified warrant officers considered.  His OERs showed that his SRs had always rated him as a center of mass officer.  While his raters gave him the maximum check block ratings under the prior OER system, their comments did not always substantiate their ratings.  

4.  The applicant had submitted his request for redress, i. e., that his request for attendance at the MTP be properly processed, on 7 June 1999.  This was after the Fiscal Year 1999 CW3 promotion selection board convened.  The Board notes that the applicant’s brigade commander, in granting his request for redress, did not instruct DA to send him to the MTP course.  He had no authority to do so. The brigade commander only forwarded the applicant’s request to DA with an explanation of why the original request was not properly forwarded, requested expeditious processing, and advised that his course attendance should be coordinated with his gaining command.  The Board concludes that DA, knowing that the applicant would have to be separated if he were not selected for promotion by the second board, made the proper decision to wait until after the results of the second promotion board were released to schedule the applicant for the course.

5.  The Board concludes that the second promotion selection board determined that the applicant’s performance record, as shown by his OERs, did not show him to be one of the best-qualified warrant officers considered.  His latter OERs also showed that his SRs had always rated him as a center of mass officer.  Even discounting his last adverse OER, his latter OERs showed that his raters did not always give him the maximum check block ratings under the new OER system.  His raters’ comments also did not indicate he was an above center of mass officer.  

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

__slp___  __lem___  __aao___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037156	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.01	
2.		
3.		
4.		
5.		
6.