MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 November 2000
	DOCKET NUMBER:   AR2000047038

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, Jr.		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 either be placed on the Fiscal Year (FY) 2000 CW3 Army Promotion Selection List or that he be promoted to the rank of chief warrant officer three (CW3).

APPLICANT STATES:  In effect, that the results of the 2 May 2000, CW3 Promotion Selection Board were released on 22 August 2000 and he was not selected for promotion by that board.  He goes on to state that he is as technically qualified, if not more qualified, than those who were selected and that no one has been able to explain to him why he was not selected.  He further states that he believes that a combination of injustices occurred which led to his nonselection and he believes it was because his records were not carefully reviewed by the selection board, that his having training and maintaining a secondary military occupational specialty was held against him, and that the board was biased both professionally and politically against him because of his position as a polygraph examiner.  He goes on to explain in lengthy detail why he thinks he was more qualified than those selected in a supporting statement enclosed with his application.  He also submits copies of his evaluation reports, awards, officer record brief, report of separation (DD Form 214), a copy of the message announcing the zones of consideration, and a copy of the selection list.

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

He enlisted in the Regular Army on 6 March 1984 and was promoted to the pay grade of E-6 on 1 June 1990.  He continued to serve through a series of continuous reenlistments until 15 September 1994, when he was honorably discharged in the pay grade of E-6 to accept a warrant officer appointment.  He had served 10 years, 6 months and 10 days of total active service.

He was appointed as a United States Army Reserve (USAR) warrant officer one (WO1) on 16 September 1994 with a concurrent call to active duty.  He was promoted to the rank of chief warrant officer two (CW2) on 26 August 1996.

Military Personnel (MILPER) Message number 00-89 announced the zones of consideration for the FY00 CW3, CW4, and CW5 Promotion Selection Board.  The zones of consideration for CW3 in the promotion zone included personnel who were promoted to the rank of CW2 between 1 October 1995 through 30 September 1996.  The board convened on 2 May 2000 and adjourned on 26 May 2000.

The results of that board were released on 22 August 2000 and the applicant was not selected for promotion (first time in primary zone of consideration).

In the processing of this case a staff advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) Promotions Branch which opined, in effect, that a detailed review of the applicant’s records failed to reveal the existence of a material error and that in order to be eligible for promotion reconsideration, there must be evidence of material error when he was considered but not selected.  It opined that the applicant received fair and equitable consideration and explained that the promotion boards are comprised of senior officers with a wealth of experience and exceptional records of performance.  However, the law prohibits those boards from divulging the reasons for selection or nonselection of any officer.  The PERSCOM opined that he was not eligible for reconsideration and recommended that his request be denied. 

The opinion was forwarded to the applicant for comment and he responded to the effect that he was not asking for reconsideration, but instead was requesting that the Board exercise its authority and either place him on the promotion selection list or promote him.  He further stated that he knows that there were no material errors in his records, but that the Board should recognize that based on a review of those who were selected, he was unfairly nonselected when his skills and qualifications are compared to the selected officers.  He further opined that the fact that promotion boards do not divulge the reasons for selection or nonselection is simply a means by which the Department can hide behind the law.  He also states that the PERSCOM has failed to show evidence that he was fairly and equitably considered by the selection board and did not address the issues outlined in his application.

A review of the applicant’s officer evaluation reports (OER) shows that all of his reports indicate that he was rated as a center of mass officer by all of his senior raters.

Army Regulation 600-8-29 prescribes the policies and procedures for promotion reconsideration of officers on the active duty list by special selection boards (SSB).  It states, in pertinent part, that an officer will not be reconsidered by a SSB when an administrative error was immaterial or it was determined by the appropriate authority (PERSCOM) that there was not a reasonable chance that the individual would have been selected for promotion had the error not occurred. That regulation also provides that promotion selection boards will not reveal their reasons for selection or nonselection of any warrant officer considered.

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 not selected for promotion, his contention that he was equally or better qualified than those selected is at best speculative on his part; because like this Board, he does not have the advantage of reviewing all of the records of the eligible officers considered at the time to determine who was best qualified to meet the needs of the Army.

3.  Inasmuch as selection boards do not divulge their reasons for selection or nonselection, the Board must presume in the absence of evidence to the contrary, that the applicant received equitable and fair consideration by a duly constituted selection board.  Accordingly, the Board will not attempt to      second-guess their judgement based on the arguments submitted by the applicant. 

4.  The Board also finds that the applicant’s contentions that the selection board was biased against him because of his qualifications is without merit and is not supported by either the evidence submitted with his application or the evidence of record.  Accordingly, in the absence of a material error in his records, which he admits does not exist, and the lack of evidence to show that the selection board erred when it considered him and failed to select him, the Board finds no basis to promote him to the rank of CW3. 

5.  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

___jhk___  __mkp __  __wh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000047038	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/PROMOTION	
2.		
3.		
4.		
5.		
6.