MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2002                  
	DOCKET NUMBER:   AR2002066998

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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:  Reconsideration for promotion to chief warrant officer three (CW-3).

APPLICANT STATES:  He cites the low selection rates for CW-3s in his military occupational specialty (MOS) at the Fiscal Year 1999 (FY99) and FY00 selection boards and states that, had the FY01 board considered him he probably would have been selected.  He spent two years in the Defense Language Institute (DLI) because he was recycled in order to achieve higher course standards.  This was longer than the normal course of instruction and it precluded him from receiving an officer evaluation report (OER) between the two selection boards.  This 2-year period without an OER was, undoubtedly, considered detrimental by the selection boards.  

He received an above center of mass (COM) OER  in February 2001.  He and his chain of command understood that the FY 01 board would consider him before his mandatory retirement date (MRD).  His non-consideration precluded both his promotion and his selective retention.  

He has demonstrated his value to the Army by serving as the Battalion Operations Warrant during Operation Enduring Freedom.  He thought that the Total Army Personnel Command (PERSCOM) only sent promising officers to the DLI.  Even though the assignment met the needs of the Army and should have been beneficial to his career, it suffered a setback because he attended the DLI at the time he was being considered for promotion.

He believes that if he were to be reconsidered his recent above center of mass (COM) Officer Evaluation Report (OER) would enhance his record to the point that he would be selected.  He submits two above COM OERs for the period from June 2000 to February 2001 when he served as a Special Forces company operations officer and from February 2001 to February 2002 when he served as a Special Forces Battalion Operations Warrant Officer.

He also submits a letter of support from his battalion commander who writes, "[the applicant] consistently excels despite the task or the conditions.  His immeasurable contributions to the success of the 2nd battalion throughout fourteen OCONUS deployments and combat operations in Iraq and Afghanistan serve as subjective evidence of his needed continued service…[he] serves in a capacity as Battalion Operations Warrant Officer.  His vast experience, unquestioned dedication, technical expertise and unparalleled commitment…that he be promoted and retained in the service."

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

The applicant was appointed a Special Forces warrant officer on 28 June 1993.  He was promoted to CW2 on 28 June 1995.  Following operational assignments the applicant attended the Basic Arabic Course at the Defense Language School, from 18 February 1999 to 8 June 2000.

On his OERs as a CW2 his raters consistently marked his performance as "Always Exceeds Requirements" and his potential was indicated by "Promote Ahead of Contemporaries."  His senior raters have marked him in the top block, exclusively.  However, those top block markings have also been only COM ratings despite remarks such as "top 10% of over twenty-five," "in top 5% of over 20 highly qualified" and "one of the best warrant officers in the battalion."  

Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record 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.

During the processing of this case an advisory opinion was obtained from the Chief, Promotions Branch, Total Army Personnel Command (PERSCOM).  It pointed out that any officer who has been non-selected by an active duty promotion board is supposed to receive an OER before being considered by another promotion board.  However this provision does not apply when the individual is stationed outside the regular duty environment.  Since the applicant was attending school he was not eligible for an OER.  Denial of his request was recommended.  The advisory opinion was provided to the applicant for rebuttal.

In rebuttal, the applicant contended that expanded zones of consideration resulted in both more selectees but also in a greater number of non-selectees.  Furthermore, selective retention was not considered in FY00 but was in FY01.  If he had been considered in FY01 he would have been selectively continued if not selected for promotion.  He has been continued on active duty past his MRD.  He will be retained until 31 July 2006.  He has demonstrated his effectiveness and value to the Army by the two ACOM OERs cited above.  These OERs reflect duty positions normally filled by a CW3 and a CW4, respectively.  He has been awarded the Purple Heart and has been recommended for second awards of the Bronze Star Medal and the Combat Infantryman Badge.  He should be reconsidered under the FY99, FY00 and FY01 criteria.  

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, it is concluded:

1.  Promotion Boards do not disclose the reasons for non-selection of individuals. While it is possible that the applicant's lengthy stay in language school may have hurt his chances it is equally possible that, notwithstanding the glowing remarks by senior raters, the applicant's record simply was not distinguishable from his COM peers.  

2.  Unfortunately, there was no identifiable material error in the applicant's records at the time he was considered and non-selected by the FY 99 and FY00 promotion boards.  Furthermore, reconsideration by a special selection board might not produce the desired results, because his record would have to be reconstituted exactly as it was originally.  Fortunately, the applicant has been extended on active duty beyond his MRD and he will continue to be considered for promotion.

3.  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.

4.  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

__RJW__  ___RWA_  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002066998	
SUFFIX		
RECON		
DATE BOARDED	20021010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.