MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 July 2003
	DOCKET NUMBER:   AR2003089952

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. Thomas Lanyi		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:  Promotion to the rank of Chief Warrant Officer Three (CW3) with an effective date of the first promotion board in 1976.

APPLICANT STATES:  In 1976, following the close of the Vietnam War, Congress made the decision to reduce the number of Army officers through the method of promotion passover and then elimination from the service.  He claimed that in order to eliminate officers, the Army decided to expand the zone of consideration to the point that it was so large that it would be impossible to promote all those considered.  He claimed this caused several hundred officers to be considered with no chance of promotion.  The second year this happened hundreds of officers were passed over a second time and then eliminated from the Army.  He stated that the promotion board was required to consider promotion based on the Officer Evaluation Report (OER).  He stated that those officers with the highest ratings were promoted and the officers with lower ratings were passed over and ultimately eliminated from the Army.  He contended that the branch of the officers was not considered and the OER was compared with officers in all other branches.  

The applicant stated that every branch of the service and every specialty within each branch rated their officers based on different criteria.  He continued to state that in some branches, it was common for raters and indorsers to give a superior officer a rating of "100."  He also stated that in other branches it was known that no one would receive a rating of "100" because no one is perfect.  He stated that as a normal rule, the rating system within a branch and/or specialty would remain the same.  

He stated that the job of an intelligence officer was different in every job assignment.  He claimed that the OER scores for intelligence officers were always lower than those of other branches and whenever intelligence officers were assigned to a combat unit, he/she would often be rated or indorsed by an officer from another branch.  The applicant contended that the indorser did not know what his job was and did not believe that he should have worn civilian clothes.  In addition, he stated that he had on two occasions failed his section during security inspections.  When he complained to the indorser and to his superior about the reason for the lowered OER grade, he was told that no appeal could be made if the score from a rater or indorser was "90" or over.  

He further stated that his last OER covering the period 16 September 1974 through 15 September 1975 caused his passover for promotion and subsequent elimination from the Army.  He contended that he was rated against officers from other branches instead of only being rated against officers from his own branch.  Less than three months after his discharge, the Army advertised for individuals with the specialties in which he trained.  In support of his application, the applicant submitted three OERs covering the periods 16 September 1974 through 15 September 1975, 25 August 1972 through 20 July 1973, and 5 August 1969 through 18 February 1970; three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter from the Veterans Administration Regional Office in St. Petersburg, Florida, dated 30 November 1977; two supplemental letters; and three DA Forms 1059 (Academic Evaluation Report).

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

After having prior service in the Regular Army as an enlisted soldier, he was appointed as a Reserve warrant officer of the Army on 5 August 1969 in the rank of Warrant Officer One (WO1).  He was awarded primary military occupational specialty (MOS) 971A (Counterintelligence Technician) and secondary MOS 972A (Area Intelligence Technician).  

The applicant was promoted to the rank of Chief Warrant Officer Two (CW2) in the Army of the United States (AUS) with a date of rank and effective date of 5 August 1970.  

The applicant was promoted to the rank of CW2 as a Reserve officer of the Army with an effective date of 5 August 1972.

The applicant's OER for the period 16 September 1974 through 15 September 1975 shows his principal duty title was Counterintelligence Technician in duty MOS 971A.  The rater was the Chief of the Counterintelligence Section, 8th Military Intelligence; the indorser was the Deputy G2 at Headquarters and Headquarters Company, 8th Infantry Division; and the reviewer was G2 of the 8th Infantry Division.  Part II(c) of this OER shows the rater and the indorser based the applicant's report on six frequent observations, records and reports.  

The rater indicated in Part VI(a)(1) of the OER ending 15 September 1975 that the applicant "Maintained the highest standards of counterintelligence report writing." The indorser indicated that the applicant would make the greatest contribution to the Army as a case control officer for a Military Intelligence Battalion.  Under Part VI(b), the rater and indorser placed a rating score under the block:  "Promote this officer to the next higher grade ahead of his contemporaries."  Under Part VIII, the rater gave the applicant an evaluation score of "97" and the indorser gave him an evaluation score of "90" for a total report score of "187."

In a 23 April 1976 letter from the Chief of the Personnel Management Support Division, U.S. Army Military Personnel Center (MILPERCEN), the applicant was informed that he had been considered by a Department of the Army Promotion Selection Board which convened on 3 February 1976.  This board considered officers for temporary, AUS promotion to Chief Warrant Officer Three (CW3) under the provisions of Army Regulation 624-100.  He was not recommended for promotion.  This letter stated the requirement to reduce the strength of the officer corps had limited the number of promotions and had resulted in the inability to select many highly qualified officers with fine records.  He was also informed that the board had examined the entire record of each officer on an impartial basis and factors such as:  performance reflected by efficiency reports, civilian and military training, type and variety of assignments and future potential.

In a 15 April 1977 letter from the Chief of Personnel Operations Division, MILPERCEN, the applicant's company commander was notified of the applicant's second nonselection for promotion to CW3.

On 18 April 1977, the applicant acknowledged that he had received official notification by proper military authority that two consecutive Department of the Army Promotion Selection Boards did not recommend him for promotion to the next higher temporary grade.  He also acknowledged that he understood that he would be released from active duty under the provisions of Section XVII, Chapter III, Army Regulation 635-100. 

The applicant was honorably released from active duty on 17 July 1977 in the rank of CW2.

Chapter 4 of Army Regulation 624-100 (Officer Promotions), in effect at the time, governed the eligibility, selection and promotion of Chief Warrant Officers.  This chapter pertained to promotions in the AUS above CW2 and in the Regular Army.  This regulation stated, in pertinent part, that warrant officers were promoted to temporary grades in their respective components.  An other than Regular Army warrant officer twice nonselected to CW4 or CW3 AUS was separated from active duty.

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.  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.  The evidence of record shows the applicant was twice nonselected for promotion to CW3 by a Department of the Army Promotion Selection Board.  

3.  Based on the governing regulation in effect at the time, he was separated from active duty.

4.  The contentions of the applicant have been noted by the Board.  However, without being able to review all the records, MOS/authorized-by-grade projections and special instructions that were available to the promotion boards that considered the applicant, the Board cannot determine why he was not selected for promotion.  The Board is aware that the latter years during which he was considered for promotion were years of drawdown after the Vietnam War.  Without evidence to show otherwise, the Board concludes that the soldiers who were recommended for promotion to CW3 were, in the promotion boards' considered opinion, the best qualified in their MOS.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2003089952	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030722	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.