MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 December 2000
	DOCKET NUMBER:   AR2000041238

	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:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 his effective date of promotion to Chief Warrant Officer Three/W-3 be changed to 17 June 1997 and his date of rank to 15 June 1996.  That he be paid all back pay and allowances due for all drills denied and that he be provided all retirement points and service creditable for retirement as appropriate.

APPLICANT STATES:  In effect, that since he was not promoted and was denied an opportunity to drill as a result of twice being passed over for promotion which resulted in his being removed from an active United States Army Reserve (USAR) status, he would like to be paid for all drills he would have been allowed to participate in that he was denied based on his being selected for promotion under the criteria used by the 1996 promotion selection board.  Given he was serving in a Troop Program Unit he could have been promoted based on a unit vacancy in five years as opposed to the six years it took.   

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

He is currently serving in the United States Army Reserve (USAR) and holds the rank of CW3.  He is presently assigned for duty with the 377th Engineer Company, Fort Story, Virginia.  

On 15 September 1997, a memorandum issued by the Army Reserve Personnel Command (ARPERSCOM), subject:  Notification of Promotion Status, informed the applicant that he had been considered by a Department of the Army (DA) Reserve Component (RC) selection board considering officers of his grade for promotion to the next higher grade.  It also advised him that he had not been selected and because this was the second time he was not selected for promotion to that higher grade he would be discharged or transferred to the Retired Reserve if he were eligible and requested the action. 

On 17 November 1997, ARPERSCOM published a memorandum, subject:  Second Nonselection for Reserve Officer Promotion, which advised the applicant that since he had twice been not selected for promotion he would no longer be authorized to participate in an active drill status, effective 27 October 1997.

On 30 December 1997, the applicant petitioned this Board for correction of his record.  He asked that he be promoted to CW3, that his date of rank be corrected, and that he be retained in an active RC status. 

On 8 October 1998, the applicant’s records were reviewed by a Stand-By Advisory Board (STAB) under the criteria used by the 1996 RC promotion selection board and he was selected for promotion to CW3 with a date of rank of 15 June 1997, which coincided with his regulatory mandatory promotion consideration date and his promotion eligibility date based on board selection.

On 25 March 1999, this Board published a decisional document that, in effect, directed that the applicant’s record be corrected to show he was promoted to CW3 on 15 June 1997 and to credit him with qualifying service for Reserve retirement for any service periods lost due to his being separated from an active status due to his second nonselection for promotion.  The Board also indicated that an adequate explanation would be placed in the applicant’s official file to explain that any gap in his Officer Evaluation Reports (OERs) that were not caused through any fault of his own and to ensure he would suffer no prejudice in any future consideration for personnel actions.  Finally the Board provided for his official record to be expunged of all documents related to his not being selected for promotion and his release from active drill status.

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 the commissioned and warrant officers of the USAR.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade or maximum years in grade (MYIG) requirement for mandatory consideration and promotion to CW3 is 6 years. 

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 noted the applicant’s request that his date of rank to CW3 be changed based on his eligibility for a unit vacancy promotion, that he be provided back pay and allowances for any drills he was denied, and that he be awarded retirement points and good retirement years as appropriate.  However, after careful evaluation of the evidence, the Board concludes relief beyond that granted by this Board in its original 1998 decision is not warranted.

2.  The Board’s original action resulted in the applicant’s promotion to CW3 based on the regulatory mandatory promotion consideration date and the applicant’s promotion eligibility date to CW3, which is the date he would have been promoted had he been originally selected for promotion by the 1996 CW3 RC promotion selection board.

3.  Further, in its original decision, the Board provided the authority to grant the applicant qualifying service for Reserve retirement for any service periods he lost as a result of his being denied the opportunity to serve in the USAR in an active status.  In the opinion of the Board, this equity relief was sufficient to make the applicant whole based on the injustice served upon him as a result of his not being selected for promotion in 1996.  

4.  However, while providing qualifying retirement service credit was appropriate equity relief, the Board does not feel it necessary, as a matter of either propriety or equity, to provide the applicant further relief in the form of back pay and allowances for drill services he did not actually perform.

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

__amc __  ___jam __  ___alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041238	
SUFFIX		
RECON		
DATE BOARDED	2000/12/05	
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.  21	102.0700	
2.  283	128.0000	
3.		
4.		
5.		
6.