PROCEEDINGS

		 		

	BOARD DATE:         	26 MAY 1999 
	DOCKET NUMBER:   	AC96-06219B
					AR1999025917

	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. Loren G. Harrell		Director	
	Mr. Rick A. Schweigert		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms.  Barbara J. Ellis		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 reconsideration of his last application to this Board in which he requested promotion reconsideration to chief warrant officer 3 (CW3) under the 1997 criteria.  He further requests reinstatement to active duty.

3.  The applicant states that, when the Board reconsidered his application on 4 November 1998, the Board was under the impression that he was on active duty when, in fact, he was involuntarily separated in March 1998 based on his two-time nonselection for promotion to CW3.  He believes that had the Board been aware of his true status, it would have made a determination in his favor and recommended promotion reconsideration.

4.  The applicant’s military records show that after serving on active duty as an enlisted member for 6 years, he accepted an appointment as an aviation USAR warrant officer (WO1) on 3 August 1989, with concurrent call to active duty.  He immediately was transferred to Germany for duty as an aeroscout pilot in a cavalry (aviation) unit.  

5.  While assigned to that unit, the applicant was deployed to Southwest Asia in support of Operation Desert Storm, where he was awarded the Distinguished Flying Cross and the Bronze Star Medal for heroism and extraordinary achievement while participating in aerial flight.  He still was serving in the rank of WO1.  He subsequently was promoted to the rank of CW2 on 3 August 1991.

6.  On 20 March 1992 nonjudicial punishment (NJP) under Article 15, UCMJ, was imposed against him for being drunk and disorderly on 22 November 1991.  The punishment imposed consisted of a forfeiture of $1,800.00.  The proceedings of the NJP were filed on the performance fiche of his Official Military Personnel File (OMPF).

7.  On 24 August and 6 November 1995 the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) requesting transfer of the record of proceedings of NJP to his restricted fiche.  The DASEB denied his requests.  

8.  On 7 August 1996 this Board denied his request for transfer of his NJP to his restricted fiche and for promotion reconsideration to CW3.  Thereafter, the applicant was nonselected for promotion to CW3.  (His first promotion consideration.)

9.  On 21 April 1997 the applicant submitted another request to the DASEB, making the same request.  Despite a plea to the DASEB from the Chief, Field Operations, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, on or about 9 May 1997 to expedite the applicant's case because his records were scheduled to go before a June 1997 CW3 promotion selection board, the DASEB

stated that its policy was to review cases as they were received.  Consequently, the applicant was nonselected for promotion to CW3 and was scheduled for elimination from the service on 1 March 1998.  

10.  On 9 July 1997 the DASEB voted to transfer the NJP to the applicant's restricted fiche based on "intent served".  However, the DASEB did not recommend promotion reconsideration.

11.  On 1 March 1998 the applicant was discharged from active duty in the rank of CW2 as a two-time nonselection for permanent promotion to CW3.

12.  The applicant was selected for promotion to CW3 by the Fiscal Year 1998 promotion selection board.  That selection was erroneous since the applicant was twice nonselected for promotion, first in 1996 then in 1997.

13.  On 4 November 1998 this Board considered the applicant's case.  At that time, the Board was under the impression that he still was on active duty since the Board concluded that "The applicant has successfully overcome elimination proceedings and has been selected for promotion [to CW3]."  The Board went on to recommend that that all documents relating to the 1992 NJP, the various DASEB appeals, promotion nonselection(s), the elimination action and all association documents be transferred to the restricted portion of his OMPF.

14.  Army Regulation 600-8-24 prescribes the policy and sets forth the procedures for officer transfers from active duty to the Reserve Component and discharge functions for all officers and warrant officers on active duty for 30 days or more.  Chapter 5 of that regulation states, pertinently, that an officer or warrant officer twice nonselected for promotion will be involuntarily released or discharged from active duty.

CONCLUSIONS:

1. The DASEB acted within its prerogative in May 1997 when it declined to consider the applicant's case ahead of others based on its first-in-first-out policy even though the DASEB knew he was facing an upcoming promotion selection Board in June 1997 and that the promotion board would determine the fate of his military career because he already was nonselected for promotion by a 1996 promotion selection board.   

2.  Nonetheless, in July 1997, the DASEB determined that the 1992 NJP imposed against the applicant in March 1992 should be transferred to the restricted fiche of his OMPF, based on the doctrine of "intent served."   The DASEB did not recommend promotion reconsideration.  

3.  Although it is noted that the DASEB acted within its authority when it refused to expedite his case, it is reasonable to surmise that, had the DASEB considered his case in May 1997, as was requested, it would have transferred the NJP to his restricted fiche at that time.  Had the DASEB taken action in May 1997, the June 1997 promotion selection board would not have seen the NJP.  

4.  In retrospect, its seems inherently unfair to continue to deny the applicant promotion reconsideration based simply because of the timing of the circumstances in this case.  This seems especially true considering the fact that this Board was under the misconception that the applicant had been promoted to CW3 and had been retained on active duty when it considered his case in November 1998.

5.  By placing the applicant's records before a special promotion selection board (absent the 1992 NJP), that promotion board can fairly and finally determine the fate of his active duty military career.

6.  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:

	a.  by showing that the NJP, DA Form 2627, imposed against the individual concerned on 20 March 1992 was transferred to the restricted fiche of his OMPF by the DASEB on 9 May 1997 vice 9 July 1997, along with all documents related to the DASEB; 

	b.  by voiding his second nonselection of promotion to CW3 under the fiscal year 1997 CW3 Army promotion selection board and by removing from his records all documents related to that nonselection; 

	c,  by placing his records before a special promotion selection board under fiscal year 1997 criteria promotion consideration to CW3 and that if he is selected for promotion, he be assigned an appropriate sequence number and promoted on when his sequence number is reached; and 

	d.  by voiding and removing from his records any reference to his erroneous selection and promotion to CW3 by the 1998 Army promotion selection board.

2.  That, if he is selected for promotion, his discharge from active duty on 1 March 1998 be voided and considered to be without force or effect; and that any and all travel performed in compliance with orders for his discharge, and incident thereto, was performed as an authorized permanent change of station or temporary duty with entitlement to all monetary allowances for him and his dependents, as appropriate.  

3.  That an adequate explanation be placed in his OMPF to show that any gap in his OER's from the date of his last report to the date of his return to active duty was not caused by any fault on his part and to ensure that he should not be prejudiced thereby in any future personnel actions.

BOARD VOTE:  

_MDM ___  ___AAO___  __BJE__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________      GRANT FORMAL HEARING

________  ________  ________       DENY APPLICATION

		      _Mark D. Manning___
		        CHAIRPERSON

INDEX

CASE ID	AC96-06219B/AR1999025917	
SUFFIX		
RECON	19981104	
DATE BOARDED	19990526	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131	
2.		
3.		
4.		
5.		
6.		

S:  30 July 1999

SFMR-RBR - 1st End (26 May 99, Docket Number AC96-06219B/AR1999025917
SUBJECT:  ABCMR Proceedings

HQDA, OASA, Arlington, Virginia  22202-4508                                  26 May 1999

THRU:  Commander, Total Army Personnel Command, ATTN:  TAPC-MSE-A
                 200 Stovall Street, Alexandria, Virginia  22332-0400

TO:  US Army Review Boards Agency Support Division - St. Louis
        ATTN:  SFMR-RBR-SL, 9700 Page Avenue, St. Louis, Missouri 63132-5200

1.  Under the authority of Title 10, United States Code, section 1552, the recommendation of the Army Board for Correction of Military Records is hereby approved, and it is directed that all of the Department of the Army records of the individual concerned be corrected as shown under Recommendation in the Proceedings of the Board in this case.

2.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 July 1999.  Further, request that the individual concerned and counsel, if any, as well as any members of Congress who have shown interest be advised of the correction and that the Board for Correction of Military Records be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:

Karl F. Schneider
Deputy Assistant Secretary
(Army Review Boards)

Encls 

CF:
Applicant
(   ) OMPF
(   ) SFMR/pmp
(   ) DFAS
(   ) Schweighert