MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  2 November 2000
	DOCKET NUMBER:  AR1999033177

	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. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. William D. Barr		Member	
	Mr. Ted S. Kanamine		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, correction of several downgraded Officer Evaluation Reports (OER’s), promotion reconsideration for chief warrant officer five (CW5), and reinstatement and retention on active duty in his former Regular Army status.

APPLICANT STATES:  Applicant defers to counsel.

COUNSEL CONTENDS:  The applicant’s records are in error and have stopped a great officer from promotion to CW5 and retention on active duty.  He prefaces his contentions with a quote from a 1996 ARMY TIMES article that “The services’ boards for correction of military records are broken and must be fixed, according to the chairman of the Senate Armed Services Committee.”  He states “But judged by anyone’s standards, this case calls for redress -- it is defective on both substantive and procedural grounds.”  “[The applicant] is a splendid warrant officer who, after 22 absolutely superior years of service, somehow failed promotion to CW5.”  He has had a variety and depth of experience with extraordinary accomplishments.  He was awarded two Purple Hearts, a Legion of Merit, three awards of the Distinguished Flying Cross, and an Air Medal for Valor. He was also awarded three MSM’s, and a prestigious Aviation Safety Award.  He completed more Army schooling than any other aviation officer, he was an honor graduate of the Warrant Officer Senior Course, a Distinguished Graduate from the Armament Managers Course, and he completed his master’s degree with a 3.8 average.  He was selected to be a Master Warrant Officer, thereby ranking him in the top 5% of his peers.  He was incorrectly shown as being on a temporary profile for several years, when in fact it was for 6 months following minor surgery.  His ORB was filthy with errors, containing 15 crucial mistakes which Departmental officials would not correct.  His third MSM is not shown on his Performance fiche (P-fiche).  His academic evaluation report (AER) for his Master Warrant Officer Training Course is missing from the P-fiche.  His military and civilian education was incorrectly listed.  His attempts to correct his records included ten visits to his personnel office and Departmental headquarters, plus many fax’s and telephone calls, covering an 18 month period of time.  His OER for the period 5 January 1989 through 31 May 1989 was unfairly submitted and was the first of four downgraded reports.  Senior Raters (SR’s) at the time were led to use older CW4’s to improve profiles by downgrading potential profiles and that if the rank of CW5 ever materialized that promotion would be automatic.  It was also known that top blocks were reserved for CW4’s and CW3’s who were junior.  As a teacher of other aviation warrant officers he was one of the finest warrant officers in aviation.  The applicant was discriminated against in his OER’s, and his appeals were not fairly reviewed.

Counsel submits statements from the applicant and others, and other documentation in support of the applicant’s request.

Counsel notes the applicant filed an earlier application in January 1997 but that the Army lost it, requiring this second application.

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

The applicant was appointed as an Aviation warrant officer one effective 9 March 1970, with prior enlisted service.  He received temporary promotions to CW2 on 
9 March 1971, to CW3 on 9 November 1977, and to CW4 on 1 October 1982.  He received permanent promotions to CW2 on 10 March 1973, to CW3 on 
10 March 1979 and to CW4 on 10 March 1985.  He was appointed in the Regular Army in 1975 and to Master Warrant Four (MW4) in 1990.  His Mandatory Retirement Date was 1 March 1994.

On 10 March 1989 he received a permanent physical profile of L-2 for low back pain and right knee pain.  No disposition was noted.

On 17 January 1992 he received a permanent physical profile of L-2 for Morton Syndrome, low back pain and right knee pain.  No disposition was noted.

Copies of the applicant’s available ORB’s published in 1992, 1993 and 1994 show his physical profile as “111111/9203 [March 1992].”

The applicant did not appeal the OER covering the period 5 January 1989 through 31 May 1989.

The applicant was considered but not selected for promotion to CW5 by the FY92 CW3/CW4/CW5 promotion selection board.  He reviewed and signed his ORB submitted for promotion review on 26 March 1992.

The applicant’s appeal of the OER covering the period 11 February 1991 through 12 November 1991 was approved by Department officials on 12 November 1992. Based on this action he received promotion reconsideration by a Special Selection Board (SSB) for CW5 under FY92 criteria.  He was not selected by the SSB.

On 26 May 1993 the applicant submitted a four page memorandum with 11 attachments to the President of the promotion selection board with information concerning his career, potential and records.

The applicant was considered but not selected for promotion to CW5 by the FY93 CW3/CW4/CW5 promotion selection board.

The applicant’s appeal of the OER’s covering the period 9 March 1990 through 10 February 1991, and 11 February 1991 through 12 November 1991 (second appeal) was primarily based on the SR profiles.  Neither OER contained adverse ratings.  This appeal was considered but not approved by Department officials on 22 February 1994.

He was honorably retired from the Regular Army effective 28 February 1994 based on sufficient service for retirement.  He was placed on the Retired List on 1 March 1994 with 26 years of active Federal service.  He was awarded the Legion of Merit upon his retirement.

The records show the applicant received an Associate Degree in 1977.  They do not show a master’s degree.  They also show that his third MSM covered the period December 1988 to April 1992 and was not eligible to be reviewed by the FY92 promotion selection board.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.   Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

The regulation does not show special OER profile downgrading by SR’s for CW4 or MW4 potential ratings.

Army Regulation 624-100/600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a SSB 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.  Material errors may include, e.g., corrected or missing OER’s and awards of the Silver Star.

On 31 August 2000, the President of the Special Review Boards, expressed the opinion that the contested OER’s are correct and recommended denial of the applicant’s request.  He submits a summary of consideration.

On 19 September 2000, the applicant acknowledged and rebutted the opinion.  In support of his rebuttal he submits documents he previously submitted in support of his application.

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.  In view of the circumstances in this case, the applicant is not entitled to correction of the contested OER’s, promotion reconsideration for CW5, and reinstatement and retention on active duty in his former Regular Army status.  He has not sufficiently shown error, injustice or inequity in his request to overcome the presumption that his records are correct.

3.  His contentions, and those of his counsel have been noted by the Board; however, they are not satisfactorily supported by his application or the evidence of record.  He has not shown his SR’s were led to downgrade his profile ratings or that the contested OER’s were otherwise unjust or unfair.  It is concluded he also received fair review of his appeals by Departmental officials, and that he did not timely appeal the contested 1989 OER as provided for by pertinent regulations.  It is also noted the contended errors on his ORB were reviewed by him on his 1992 review for promotion purposes, or are otherwise not material error justifying further promotion reconsideration.

4.  The contentions have also not shown he did not receive fair and equitable consideration for promotion.

5.  The Board does not dispute the applicant has a good record and was competitive for retention and promotion purposes at the time; however, it notes that, as shown in this case, promotion and retention on active duty is not automatic based on qualifications alone, but includes a competitive process of a promotion board determining an individual's potential and ability to perform at the higher grade amongst his/her peers, and the needs of the service.  The Board also notes that promotion and retention in the Regular Army is keenly competitive, and that many officers will not be selected.

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

__fe__  __wb___  ___tk____  DENY APPLICATION

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

INDEX

CASE ID	AR1999033177	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001102	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	111.00	
3.		
4.		
5.		
6.