MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 August 2000
	DOCKET NUMBER:   AR1999031389

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		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:  That he be placed on the Retired List in the rank of Chief Warrant Officer Five (CW5).

APPLICANT STATES:  In effect, that he was selected for promotion to the rank  of CW5 by the 1994 CW5 Selection Board; however, because there were no vacant CW5 positions available, he was never promoted and instead was transferred to the Retired Reserve when he reached his maximum age.  However, he should have been promoted to the rank of CW5 upon transfer to the Retired Reserve in accordance with paragraph 4-18 of Army Regulation         135-155. 

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

On 18 August 1994, while serving as a United States Army Reserve (USAR) Chief Warrant Officer Four (CW4) in a Regional Support Command (RSC), the applicant was notified that he had been selected for promotion to the rank of Chief Warrant Officer Five (CW5).  The notification explained that in order to be promoted, he must be assigned to a CW5 position, must have completed the Master Warrant Officer Training Course/Warrant Officer Senior Staff Course, that he must remain in an active status, and that he must meet the medical qualifications for retention. 

On 9 October 1998 the applicant was transferred to the USAR Control Group (Retired) in the rank of CW4 due to having reached the maximum age requirements for service in the USAR.

A review of the applicant’s Official Military Personnel File shows that he was born on 3 October 1938 and that he completed the Warrant Officer Senior Course on 23 June 1982 while serving in the rank of Chief Warrant Officer Two (CW2).

In the processing of this case a staff advisory opinion was obtained from the Office of Promotions (Reserve Components), PERSCOM which opined, in effect, that the applicant was selected for promotion to the rank of CW5 by the 1994 promotion selection board; however, he was never promoted because a vacancy did not exist in his military specialty.  Furthermore, the provisions of Army Regulation 135-155, paragraph 4-18, cited by the applicant, which provided that a member could be placed on the Retired List in the Reserve grade for which selected for promotion was rescinded on 1 December 1994 when the law was changed.  Officials at the PERSCOM recommended that his request be denied.

The advisory opinion was provided to the applicant who responded to the effect that he had not been provided the change in the law to assess the validity of the PERSCOM opinion and that the information from the PERSCOM indicating that there were no vacant positions in his military specialty was not correct.  While there may not have been a vacant position in the RSC in which he was serving, that is not to say that there were no vacancies in another RSC.

Army Regulation 135-155 provided, in effect, that a Reserve officer, on transfer to the Retired Reserve, would be transferred in the Reserve grade for which selected when the transfer was being made as a result of completing maximum years of service or reaching the maximum age required by law.  Effective 1 December 1994, this provision, which was based on section 1374 of Title 10, United States Code, was repealed.

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 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 Board has noted the applicant’s contentions that he should have been promoted to the rank of CW5 at the time of his retirement in 1998 based on his having been selected for promotion to that rank in 1994.  However, the provisions of the regulation and the law that provided for such advancement were rescinded in December 1994 and did not apply to the applicant in 1998.

3.  The Board also notes the applicant’s contention that there may have been other positions available outside of his RSC in which he could have been assigned in order to have been promoted prior to his retirement; however, he has failed to show through the evidence submitted with his application or the evidence of record, that he made any such attempts to procure such a position or that he was unjustly denied the opportunity to seek or occupy such a position.

4.  Inasmuch as this is not an investigative Board, it is incumbent of the applicant to provide the evidence necessary to show that an error or injustice occurred in his case.  The applicant has failed to do so and the Board finds that he was properly retired in the rank of CW4.

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

___esc__  ___js____  ___cmf__  DENY APPLICATION

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

INDEX

CASE ID	AR1999031389	
SUFFIX		
RECON		
DATE BOARDED	2000/08/03	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV IN GRD	
2.		
3.		
4.		
5.		
6.