MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR2000037507

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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 reinstated to an active status in the USAR.

APPLICANT STATES:  In effect, that his mandatory transfer to the Retired Reserve be reconsidered and that he be placed back in an active USAR status.  He bases this request on the fact that he was not aware of the change in requirements for promotion to Chief Warrant Officer 4 (CW4).  He indicates that the change in requirements was mailed by the promotion branch at the Army Reserve Personnel Command (ARPERSCOM) to an address in Tacoma, Washington, when his correct address was in Easton, Pennsylvania.  He claims it is unfair to punish him for something he was not aware of and that as an enlisted man he used to teach at the advanced course.  

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

On 30 May 1992, the applicant was released from active duty (REFRAD), in the rank of Chief Warrant Officer 2 (CW2), after completing 14 years, 10 months, and 16 days of active military service.  He was concurrently appointed a CW2 in the USAR and began serving in an individual mobilization augmentee (IMA) status at that time.

The applicant was promoted to CW3 in the USAR on 31 October 1993 and was considered but not selected for promotion to CW4 by both the 1998 and 
1999 Reserve Components Selection Boards, which resulted in his mandatory transfer to the Retired Reserve.  

An advisory opinion on this case was received from the ARPERSCOM promotion branch on this case.  They recommended that this application be denied because the applicant had not been selected for promotion to CW4 by both the 1998 and 1999 CW4 Reserve Components Selection Boards.  They further indicated that the reason for the applicant’s nonselection by both these boards was that he had not completed the military education prerequisite of completing the warrant officer advanced course (WOAC).  They further opined that given he has not completed this mandatory requirement for promotion to CW4 there is no basis for him to be reconsidered for promotion by a standby advisory board (STAB).  

The applicant was provided a copy of the advisory opinion referred to in the preceding paragraph and was given an opportunity to respond.  However, to date he has not elected to provide a rebuttal.  In addition, the record contains no information to show that the applicant ever attempted to attend the WOAC during his tenure in the USAR.  There is also no evidence to suggest that he ever attempted to determine the basis for nonselection in order to take corrective action even after his 1998 nonselection.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  Paragraph 2-4 (Eligibility for Consideration) states, in pertinent part, that warrant officers in an active Reserve status may be selected for promotion provided they meet the minimum promotion service and military education requirements in table 2-1.1 and it further specifies that nonselection for promotion per this paragraph constitutes a passover. 

Table 2-1.1 (Promotion Service and Military Education Requirements) indicates that warrant officers being considered for promotion from CW3 to CW4 must have completed the warrant officer advanced course (WOAC).  In addition, paragraph 4-27b states, in pertinent part, that an officer who twice fails to be selected for promotion to the grade of CW4 will not be considered again for promotion. 

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve (USAR) soldiers.  Chapter 7 of this regulation provides the policy on the removal of members from an active status.  
Paragraph 7-4 provides the rules for the removal of members who are nonselected for promotion.  These rules include the mandatory removal from active status of officers who are twice not selected for promotion to CW3, CW4, captain, major, and lieutenant colonel. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board concurs with the recommendation, provided in the advisory opinion of ARPERSCOM, that this application be denied.  After careful examination of the evidence of record and the independent evidence provided by the applicant, the Board concluded that there is no basis to reinstate the applicant to an active USAR status. 

2.  The evidence of record shows that the applicant was considered and nonselected for promotion by two properly constituted Reserve Component Promotion Selection Boards and based on those nonselections, by regulation, his removal from an active status and his transfer to the Retired Reserve were mandatory.  

3.  The Board concluded that even if the applicant’s contention that one information packet was erroneously mailed to his wrong home address is true, this does not provide sufficient mitigation to warrant overturning the mandatory removal action dictated by his twice being nonselected for promotion to CW4. 
4.  In the opinion of this Board, the applicant had ample opportunity to address any issues he may have had with his promotion nonselection through the appropriate channels prior to his second passover for promotion.  The record contains no evidence that he ever attempted to ascertain the reasons for his nonselection or to correct any factors contributing to those reasons.  Therefore, the Board finds no basis to grant the requested relief.  

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 this 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

__sk____  ___jev___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037507	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.