MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 February 2001
	DOCKET NUMBER:   AR2000046570

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Stanley Kelley		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 granted a 10-day waiver of service and be allowed to remain on active duty to attain 20 years of Active Federal Service (AFS).

APPLICANT STATES:  In effect, that he was twice nonselected for promotion to the rank of chief warrant officer three (CW3) because the zone of consideration was advanced 18 months early and it has resulted in his having to be separated from the service 10 days prior to having 18 years of AFS.  Inasmuch as he would have been allowed to remain on active duty to attain 20 years of AFS, had he had 18 years of AFS, he requests that the Board, in the interest of fairness and mercy towards his family, grant him the additional time necessary to attain the 18 years of AFS that will lock him in and allow him to attain retirement eligibility.  He continues by stating that it is an injustice to impose such a hardship on his family given the many years of dedicated service he has rendered and considering his overall career accomplishments, the change to promotion policy that resulted in his being considered early, his medical problems and the hardships it will impose on his family financially and emotionally.  He goes on to state that he should also receive favorable consideration for retention because his specialty is critically short of warrant officers and none were selectively continued by the board that nonselected him for promotion.  He also states that he has medical problems involving his back, ankle and throat and a loss of medical care/treatment would be interrupted.  He goes into detail about his medical problems in the enclosed attachment to his application.  In support of his application he submits a letter of support from a fellow warrant officer, copies of his evaluation reports, copies of letters of commendation, a copy of his officer record brief (ORB), copies of medical documents relating to his medical problems and a copy of the message changing the zones of consideration for promotion.

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

He initially enlisted in the Regular Army on 2 March 1976 for a period of 3 years and training as a military policeman (MP).  He remained on active duty until he was honorably released from active duty in the pay grade of E-4 on 1 March 1979, due to his expiration of term of service (ETS).  He had served 3 years of AFS.

On 11 March 1986 he again enlisted in the Regular Army for a period of 3 years and training as an armor specialist.  He was promoted to the pay grade of E-5 on 1 July 1987.

He was honorably discharged on 26 July 1993 and accepted a United States Army Reserve (USAR) appointment as a warrant officer one (WO1) on 27 July 1993, with a concurrent call to active duty.

On 3 September 1993, he completed the criminal investigation division (CID) special agent warrant officer basic course.  He was transferred to Fort Polk, Louisiana for his initial assignment and was promoted to the rank of chief warrant officer two (CW2) on 27 July 1995.

On 27 September 2000, the applicant was notified by the Total Army Personnel Command (PERSCOM) that he had been twice nonselected for promotion to the rank of CW3, that the promotion board results were signed in August 2000 and that the law required that he be released from the service no later than the first day of the seventh month after the Secretary of the Army approved the promotion list (1 March 2001).

In the processing of this case a service re-computation was requested from the, Retirements and Separations Branch.  It opines, in effect, that the applicant is 10 days short of having 18 years of AFS as of his mandatory release date of 1 March 2001, due to having been twice nonselected for promotion to the rank of CW3.  It further states that there were several branches that were considered for selected continuation but that there were no military police warrant officers selected.

The opinion was forwarded to the applicant and he responded to the effect that since a recomputation had been accomplished, he desired an extension or exception to policy to remain on active duty to reach retirement eligibility.

The supporting statement submitted by the applicant with his application was authored by a chief warrant officer five (CW5) and attests to the applicant’s dedication, the fact that the Army and his unit are short of experienced warrant officers of the applicant’s specialty, and opines that it would serve everyone’s best interest to retain the applicant on active duty.

Army Regulation 600-8-24 serves as the authority for processing separations of commissioned and chief warrant officers who are twice nonselected for promotion by a Headquarters Department of the Army Centralized Board.  It states, in pertinent part, that commissioned and warrant officers who are twice nonselected for promotion will be involuntarily released from active duty on the first day of the seventh month following the Secretary of the Army approval of the promotion selection board results unless they are selectively continued, have completed 18 years of AFS as of their scheduled release date or have retired.  A warrant officer may submit their resignation or request earlier separation for the purpose of continuing on active duty in an enlisted status.  A warrant officer with 18 or more years of AFS as of the scheduled released date will be afforded the opportunity to be retained on active duty to reach retirement eligibility.

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.  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.  While it is unfortunate that the applicant was twice not selected for promotion, such a nonselection does not necessarily constitute an error or injustice by the Department.  He was properly considered by a duly constituted promotion selection board along with his peers and was nonselected for promotion and selective continuation.  Accordingly, his required separation of 1 March 2001 is correct. 

3.  The applicant’s contentions that it is unjust to separate him 10 days shy of his 18th year of AFS has been noted by the Board and while the Board is sympathetic to his circumstances, the Board finds no basis to grant him an exception to policy or law in this matter.  

4.  The applicant was considered for promotion along with his peers and was nonselected for promotion.  Therefore, the Board finds that to grant him an exception in this case without evidence of an error or injustice to support such a decision would be affording him an unfair benefit/advantage not afforded to others in similar situations. 

5.  The Board is aware that there are similar situations that occur upon the release of almost every promotion selection list.  However, the Board does not grant exceptions in those cases unless there is evidence of error or injustice showing that the individual concerned was denied a benefit afforded to others in similar situations.

6.  The applicant has failed to show that he was denied the same proper consideration that those of his peers received and he has also failed to show chain of command support of his request as well.  Therefore, in the absence of evidence to show that he was improperly selected or that the needs of the Army would best be served by retaining him in his present grade, there is no basis for the Board to grant relief in his case.

7.  The supporting documents submitted by the applicant have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief in his case.

8.  The Board understands the applicant’s concerns regarding his ability to attain retirement eligibility and notes that while he is being released from active duty, there are other avenues available that he may choose to pursue in order to continue his service and to attain retirement eligibility.

9.  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____  __tsk____  ___rvo __  DENY APPLICATION

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

INDEX

CASE ID	AR2000046570	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/22	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  320	131.1000/2xx passover/removal	
2.		
3.		
4.		
5.		
6.