PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 December 2000                   
	DOCKET NUMBER:   AR1999030341

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be promoted to Chief Warrant Officer (CW4), W-4 with a backdated date of rank and back pay to 30 September 1998.

3.  The applicant states that he should have been promoted 30 September 1998, his promotion eligibility date.

4.  The applicant’s military records show that after having had prior enlisted service, he was appointed a warrant officer on 30 September 1983 and entered active duty.  He was released from active duty on 29 September 1987 and was assigned to the U. S. Army Reserve (USAR) Control Group (Reinforcement) with the 481st Transportation Company, Rio Vista, CA.  He was promoted to Chief Warrant Officer Three (CW3) on 30 September 1992.  (The Board notes that his Officer Evaluation Reports (OERs) for the periods ending 20 July 1997 and       21 July 1998 erroneously show his date of rank as 30 September 1985.)

5.  A 29 January 1999 letter from the U. S. Army Reserve Command to the applicant’s Representative in Congress indicates that due to an administrative error he was not considered for promotion to CW4 and he should apply to the Board for consideration by a Standby Advisory Board (STAB).

6.  A 31 January 2000 email from the Army Reserve Personnel Command     (AR-PERSCOM) to the applicant indicated that they could not submit his file to the Board until a missing OER for the period 21 July 1993 through 5 February 1994 was located and processed.  The OER had been returned to the applicant’s unit for correction (referral to the applicant was required since it showed that he did not meet the Army height/weight standards) on 8 December 1994.

7.  On 13 March 2000, the applicant requested that the AR-PERSCOM, Evaluations Appeals Branch issue a non-rated statement for the period of missing OER.  He stated that the rating chain that completed the OER was no longer assigned to the 481st Transportation Company and that the senior rater had probably retired and he had not been able to locate the other raters.  

8.  On 21 March 2000, the AR-PERSCOM Evaluations Appeals Branch returned the applicant’s request for a non-rated statement without action.  They noted that a copy of the OER had been returned to the applicant’s unit on 9 March 2000 because the report had not been referred to him.  He should contact the unit for the current processing status of that OER and they should refer the OER to him at this time.

9.  In the processing of this case an advisory opinion was obtained from the Promotion and Notification Branch, Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended denial of the applicant’s request for a STAB at this time because the cited OER had not yet been corrected.  
10.  A copy of the advisory opinion was provided to the applicant for rebuttal.  He stated that all of the raters from the cited OER left the command long ago.  His current chain of command does not know how to rectify this issue.  He has done his part.  The whole promotion issue is due to a mistake made by someone else years ago but he has had to pay the price for that mistake.  

11.  Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system.  In pertinent part, it states if an OER is required to be referred, the senior rater will refer the report to the rated officer for comment.  If the senior rater decides that the comments provide significant new facts about the rated officer’s performance and that they could affect the rated officer’s evaluation, he or she may refer them to the other rating officials who may reconsider their evaluations.  If the rated officer is unavailable, the senior rater will refer a copy of the OER, in writing, to the rated officer’s last known forwarding address with a reasonable suspense date for response.  If the rated officer fails to respond, the senior rater will attach a copy of his referral to the original OER and forward the OER for processing.

12.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and commissioned and warrant officers of the USAR.  In pertinent part, it states that STABs are formed to prevent any injustice to an officer who was eligible for promotion but whose records, through error, were not submitted to a promotion selection board for consideration or for various other cogent reasons.

CONCLUSIONS:

1.  The Board notes that a referred OER must be referred by the rated officer’s senior rater.  The Board finds the applicant’s contention that his senior rater is no longer available reasonable.  Otherwise, the Board believes that if the senior rater had referred the OER to the applicant and he just did not respond within the suspense, the senior rater would have forwarded the OER and the referral letter for processing a long time ago.

2.  The Board concludes therefore that it would be appropriate to prepare a nonrated statement for the applicant to cover the rating period 21 July 1993 through 5 February 1994 and then to send his records to a STAB for promotion consideration to CW4.  

3.  It would also be appropriate to administratively correct the applicant’s OERs for the periods ending 20 July 1997 and 21 July 1998 to show his date of rank as 30 September 1992 prior to sending his records to the STAB.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  preparing a nonrated statement for the applicant to cover the rating period 21 July 1993 through 5 February 1994 and filing it in his Official Military Personnel Records;

     b.  administratively correcting the applicant’s OERs for the periods ending       20 July 1997 and 21 July 1998 to show his date of rank as 30 September 1992.

2.  That following administrative implementation of the foregoing, the applicant’s records be submitted to a duly constituted Standby Advisory Board for reconsideration for promotion to CW4.

3.  That if the applicant is selected for promotion his records be further corrected by promoting him to CW4, assigning the appropriate date of rank, and by paying him all due pay and allowances.

4.  That if the applicant is not selected for promotion, he be notified accordingly.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rvo___  __ewl___  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999030341	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.03	
2.		
3.		
4.		
5.		
6.