MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2002
	DOCKET NUMBER:   AR2002073296

	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. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		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 promoted and advanced on the Retired List to chief warrant officer four (CW4).

APPLICANT STATES:  In effect, that his records were never presented before the CW4 promotion board because of the damaging statement made by a colonel in regard to his being medically disqualified from class 2 flying duties by reason of “exogenious obesity”.  He contends that his records were never placed before a CW4 promotion board because of this harsh, physical description of him.  He also claims that a photograph taken of him and reviewed by the 1977 flight evaluation board contradicts this statement.  He also comments that in July 1977, his military occupational specialty (MOS) was changed from test pilot to aviation maintenance technician and during his career service in that MOS, he received outstanding evaluations.  He also states that during that period he received numerous letters of commendation.  In support of his application, he provides a record of his flight evaluation board.  

EVIDENCE OF RECORD:  The applicant's military records show

On 31 May 1982, he was released from active duty (REFRAD) for the purpose of retirement.  On the date of his separation, he held the rank of chief warrant officer three (CW3), which he had attained on 1 November 1974.  

On 20 November 1981, the applicant submitted a letter requesting that he be REFRAD on 31 May 1982, and placed on the Retired List in the rank of CW3 on 1 June 1982.  

On 9 December 1981, Orders Number S237-17 were published by Department of the Army (DA).  These orders directed the applicant’s release from assignment and duty on 31 May 1982, and his placement on the Retired List the following day, 1 June 1982.  The retired grade authorized the applicant in these orders was CW3.  

A Data for Retired Pay (DA Form 3713), dated 9 December 1981, prepared on the applicant during his retirement processing, contains the entry CW3 in
Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), Item 9 (Permanent Grade), and Item 10 (Retired Pay Grade).  

There is no evidence contained in the applicant’s Personnel Qualification Record (DA Form 2-1) or Military Personnel Records Jacket (MPRJ) that shows that he was ever denied promotion consideration to CW4, or that he was ever selected for promotion to that rank by a DA promotion selection board.  

On 31 May 1982, the applicant was REFRAD for the purpose of retirement.  The separation document (DD Form 214) issued to him on this date confirms that he held the rank of CW3 on the date of his separation.  There is no indication that the applicant ever raised the issue of his promotion to CW4 at anytime while he was still serving on active duty prior to his separation. 

Army Regulation 600-8-29 provides the Army policy and procedures for officer promotions.  Chapter 7 contains guidance on promotion consideration by a Special Selection Board (SSB).  It states, in pertinent part, that an officer or warrant officer may be reconsidered for promotion by a SSB when one or more of the following conditions exist:  an officer was not considered for promotion from in or above the promotion zone by a regularly scheduled board because of administrative error; a promotion board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; and/or the board that considered an officer from in or above the promotion zone did not 
have before it some material information.

Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List.  It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 
30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

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 notes the applicant’s contention that he was unjustly denied consideration for promotion to CW4 because of his weight condition was described as “exogenous obesity” by a colonel.  Therefore, he should be promoted and advanced on the Retired List to CW4.  However, notwithstanding the applicant’s objection to characterization of his weight condition, the Board finds no evidence to show that this resulted in his being unjustly denied promotion consideration.  

2.  By regulation, to be eligible for promotion reconsideration there must be evidence to show that an officer was not considered for promotion from in or above the promotion zone by a regularly scheduled board because of administrative error; a promotion board that considered an officer for promotion acted contrary to law or made a material error; and/or the board that considered an officer for promotion did not have before it some material information.  In addition, by law, to be advanced on the Retired List, a member must have been promoted to and satisfactorily served in a higher grade while on active duty.  

3.  The evidence of record confirms that the applicant was never selected for or promoted to CW4 while serving on active duty.  Further, his Personnel Qualification Record and MPRJ contain no information or documentation that suggests that he was ever unjustly denied promotion consideration to CW4 as a result of an administrative error.  Thus, lacking independent evidence to the contrary, the Board finds insufficient evidence to support the requested relief. 

4.  Finally, the record verifies that on 1 June 1982, the applicant was voluntarily placed on the Retired List in the rank of CW3, the highest rank he held while serving on active duty, in accordance with the applicable regulations.  

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

__MKP__  __CJP __  _  _HBO __  DENY APPLICATION

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

INDEX

CASE ID	AR2002073296	
SUFFIX		
RECON		
DATE BOARDED	2002/08/29	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1982/05/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.