MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 February 2000                  
	DOCKET NUMBER:   AR2000037426

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		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:  That his mandatory retirement date of 29 February 2000 be extended to 28 April 2000.

APPLICANT STATES:  In effect, that his mandatory separation on 29 February 2000 is the result of his being twice non-selected for promotion to the rank of CW4.  He further states that he appealed an officer evaluation report (OER) to the Officer Special Review Board (OSRB) on 17 November 1999 and his appeal was denied; however, he has since obtained support from his senior rater (SR) and he resubmitted his appeal to the OSRB on 9 February 2000.  He goes on to state that the SR agrees that he should not have placed him (the applicant) below the center-of-mass (COM) on his profile when he placed him in the second block of his profile and that he did not intend to portray him as a below COM officer.  He also states that the time necessary to process his appeal will cause him to retire before the action is accomplished and will result in his having to change pay systems and all other support systems involved in such a change.  He continues by stating that if his appeal is successful and he is selected by a Standby Advisory Board (STAB) for promotion to CW4, it will save him and the Army from his having to undergo the changes involved in a recall from retirement. 

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

The applicant enlisted on 19 March 1973 and served through continuous reenlistments as a food service specialist until he was honorably discharged on 1 July 1985 to accept a warrant officer appointment with a concurrent call to active duty.

He has continued to serve as food service technician and was promoted to the rank of CW3 on 1 August 1993.

The applicant was twice nonselected for promotion to the rank of CW4 during the FY99 Department of the Army CW4 Promotion Selection Board which was approved by the SA on 11 June 1999.  The list was released on 8 September 1999 and the applicant was notified telephonically that he had been nonselected and that he had to be separated from the service no later than 31 December 1999.

The applicant applied to this Board on 18 October 1999 requesting that his mandatory separation date be changed to 29 February 2000 in order to afford him the 6 months normally afforded to personnel twice nonselected for promotion and to allow him sufficient time to take advantage of transition processing.

A memorandum obtained by the Board explaining the promotion board results to the SA and authored by the Office of the Deputy Chief of Staff for Personnel clearly explains that the SA approved the CW4 technical services portion of the list on 11 June 1999 and that the remainder of the list was approved on 23 August 1999.   The entire list was released on 8 September 1999.

In the processing of that case a staff member of the Board contacted officials at the PERSCOM, Officer Separations Branch to determine what caused the delays in notifying nonselectees on the CW4 list that was approved on 11 June 1999.  Officials at the PERSCOM indicated that technically the individuals that were non-selected had not been officially notified because the PERSCOM Officer Separations Branch did not receive notification until the list was released on 8 September 1999 and that the notification letters were dispatched on 27 September 1999.  There was no explanation on their part as to why the delay occurred prior to their receiving the list to notify the affected individuals.

The Board approved his request on 20 October 1999 and granted him an extension of his mandatory separation date to 29 February 2000 as an exception to policy.  He will have served approximately 26 years and 11 months of total active service on the date of his mandatory separation date of 29 February 2000.

In the processing of this case a staff member of the Board contacted officials at the OSRB to determine the status of his request for reconsideration of his appeal of an OER.  Officials at the OSRB indicated that his request was received at the OSRB on 16 February 2000 and that it would be considered within the next 60 days, based on the priority of his appeal.

Army Regulation 600-8-29 implements the provisions of law that pertains to the separation or release from active duty of officers who are twice nonselected for promotion.  It states, in pertinent part, that a warrant officer on the active duty list who has failed to be selected for promotion to the rank of CW4 a second time may be retired under any provision of law, if eligible, on the date requested by the officer and approved by the appropriate authority (retirement will not be later than the first day of the seventh month beginning after the month in which the President or his designee approves the report of the board that considered the officer the second time.

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 the aforementioned requirement.

2.  While the Board understands the applicant’s concerns regarding the possibility that his appeal may be approved and that he may receive promotion reconsideration that will result in his selection for promotion and retention on active duty; however, the Board finds it unlikely at best that such actions will be completed by 28 April 2000 and that an additional extension would be necessary before the actions were completed.

3.  The Board is also aware that promotion boards do not reveal the basis for selection or nonselection and that his assertion that a successful appeal of an OER will result in his being selected for promotion is speculative at best on his part.  Therefore, the Board is inclined to deny his request for an additional extension based on what amounts to his failure to timely appeal the OER in question.

4.  The Board has already granted the applicant an extension of his separation date, which was mandated under the law and for which an exception was made by the Board based on what the Board perceived as an error and injustice.  However, the applicant has failed to show through the evidence submitted with his application or the evidence of record that such is the case at this time.

5.  In the event his appeal is successful, the applicant has the option to re-apply to the Board for promotion reconsideration and reinstatement if he so chooses.

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

__rvo_       ___eb__     __rjw__     DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000037426	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/02/23	
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         1.136.0100	339/RET EFF DATE	
2.111.0000	193/OER APPEAL	
3.		
4.		
5.		
6.