MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 April 2001
	DOCKET NUMBER:   AR2000050842

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia J. Adolphi 		Member	
	Mr. Harry B. Oberg		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 given the opportunity to complete the Active Duty Phase of the Warrant Officer Advance Course (WOAC) and promotion consideration to chief warrant officer four (CW4) at the next scheduled board.  He further requests extension in a drill status until this action has been completed.

APPLICANT STATES:  That to the best of his knowledge he was never notified of his first selection board in 1999 nor of his non-selection for CW4 by the board. 
He further states that a severe eye infection suffered in December 1999 and eventual surgery were the prime factors in his records not being prepared for the CW4 selection board conducted in April 2000.  He was advised that by regulation his file must be considered by the April 2000 board.  He submits copies of a letter to the CW4 board president, a letter from his doctor, course completion certificates, Personnel Qualification Records and his Bachelor of Arts degree in support of his request.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  Information herein was obtained from documents submitted by the applicant and a review of his records by the Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command (PERSCOM) that show:

He was appointed in the Reserve as a warrant officer one effective 7 October 1985.  He was promoted to CW2 effective 7 October 1988 and CW3, 7 October 1994.

Based on the required 6 years time in grade, his promotion eligibility date (PED) to CW4 was 7 October 2000.

He was considered and not selected for promotion to CW4 by the 1999 and 2000 Reserve Components Selection Boards (RCSB’s).  He was not qualified for promotion based on the lack of the required military education.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the records at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been 
corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

The regulation also specifies that individuals will receive mandatory promotion consideration prior to their PED so that, if selected, they may be promoted on their future PED.

Army Regulation 135-155 also states completion of the WOAC is required for promotion to CW4.

The regulation further specifies that individuals twice not selected for promotion to CW4 will be removed from active status within 90 days after the selection board submits its results to HQDA.  The individual will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

This regulation also specifies that a copy of the officer’s records are dispatched 30 days before the convening date of the board and officers are directed to review the records and submit copies of missing documents and other corrections.  Lack of notification does not provide an independent basis to be reconsidered by an SSB.

Army Regulation 15-185 establishes procedures for making application, and the consideration of applications, for the correction of military records by the Secretary of the Army acting through this Board.  The regulation specifies that an application to the Board will not operate as a stay of any proceedings being taken with respect to the person involved.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant was considered by the 1999 and 2000 RCSB’s.  A review of his records revealed the applicant was not educationally qualified due to non-completion of the WOAC.  The applicant is requesting retention in order to postpone his board consideration and enable him to complete his military education.  Based on the applicant being in the zone of consideration, applicant must be considered.  Based on the applicant being not educationally qualified, applicant’s request for retention is denied.  As a result of the facts presented, it was recommended that the applicant’s request be disapproved.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 25 January 2001.  In his rebuttal dated 20 February 2001, he states that he recognizes the fact that he was not educationally qualified for CW4.  He further states that he has completed all educational requirements with the exception of the active duty phase, which he cannot complete without a return to active Reserve status.

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 view of the circumstances in this case, the applicant is not entitled to the opportunity to complete the WOAC and promotion consideration to CW4 by a later board.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions that he was never notified of his first board consideration and he was unable to address his promotion packet due to vision impairment have been noted by the Board.  However, the applicant was correctly identified and considered by the 1999 and 2000 RCSB’s in accordance with pertinent regulations.  While the Board is empathetic concerning his health situation in 1999, it also notes that the applicant had since 7 October 1994, his promotion date to CW3, to complete the WOAC and prepare himself for promotion consideration in 1999 and 2000, a period of more than 5 years; and that the first non-selection showed him and his superiors that he was failing in his military education qualification.  The Board concludes that he knew, or should have known of the long standing regulatory requirements for promotion to CW4, and also notes that it appears he failed to complete the WOAC within the time required through his own volition.

3.  The Board also notes that the applicant is not entitled to retention and promotion consideration to CW4 by a later board.  In this case, pertinent laws and regulations clearly show that after a second non-selection, a CW4 must be discharged not later than 90 days after the Board was approved.

4.  Implicit in the Army’s promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and working of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  The applicant needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.  He knew or should have known of the long-standing regulatory requirements for promotion to CW4.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh____  __cja____  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050842	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.