MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           09 APRIL 2002
	DOCKET NUMBER:   AR2001065668

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Donald P. Hupman, Jr.		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, that he be selectively continued on active duty at least 190 days in order to obtain an 18-year lock-in as a warrant officer.    

APPLICANT STATES:  That he is a two time non select for promotion to Chief Warrant Officer Three (CW3) and will have over 17 years and 5 months service by his mandatory removal date.  A waiver of 190 days will allow him to have 18 years active federal service and remain on active duty as a CW2 until retirement.

After becoming a warrant officer the zones for consideration for promotion were expanded for technical service warrant officers, placing him and others in the zone of consideration one year earlier than that of fellow aviation warrant officers who attended the same Warrant Officer Basic Course (WOBC).  If the zones were the same, he would only be a first time non select for promotion, and would be able to meet the 18-year lock-in, be allowed to remain on active duty, and retire along with his aviation warrant officer peers.

Results of the recent promotion board showed that his MOS had a ceiling of     22 of which only 15 of those positions were filled.  There is and has been a shortage of warrant officers in his MOS.  Allowing him to continue his service as a warrant officer would alleviate some of that shortage. He could revert to his former enlisted grade, staff sergeant; however, it would create an undaunting amount of mental and financial stress on himself and his family.  His service, 7 years and 8 months of which has been as a warrant officer, has been honorable.  He and his family are disheartened that he would be released 190 days shy of allowing him to meet retirement lock-in with dignity.

Members of the applicant’s chain of command support his request, with the Commanding General of the U.S. Army Air Defense Artillery Center at Fort Bliss, Texas, stating that the applicant’s release would contribute to the continued shortage of PATRIOT technicians, which would likely increase the personnel tempo of those remaining in the field; and by releasing him so close to retirement would send the wrong message about our commitment to soldiers.        

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

The applicant entered on active duty on 4 September 1984, completed training and was assigned to an air defense artillery battery at Fort Lewis, Washington, as an improved HAWK firing section mechanic.  He continued on active duty as an enlisted soldier and was assigned to various locations throughout the world, to include Germany, Fort Hood, Texas, and Fort Rucker, Alabama, where he went to warrant officer candidate school.  The applicant completed numerous courses 

in his technical field, and also completed the basic NCO course.  He attained the rank of staff sergeant.  His awards include the Humanitarian Service Medal, two awards of the Army Commendation Medal, and three awards of the Army Achievement Medal.  On 7 July 1994 the applicant was discharged from the Army in order to accept an appointment as a warrant officer.  He was appointed a warrant officer in specialty 140E (PATRIOT System Technician) the next day with concurrent call to active duty.  He completed the PATRIOT System Technician Course in January 1995. 

The applicant’s assignments as a warrant officer include Fort Lewis, Saudi Arabia for 5 months, Fort Bliss, Korea, and Kuwait for 6 months.  His evaluation reports show that the applicant was a solid center of mass performer with remarks by senior raters, “Promote at the earliest opportunity,” “Promote immediately,” and “Promote now.”  His report ending on 15 May 2000 contains the remarks by his senior rater, “Select for promotion ahead of his peers.”  As a warrant officer the applicant has been awarded the Army Achievement Medal and two awards of the Army Commendation Medal.  He completed the Action Officer Development Course at Fort Eustis, Virginia on 3 September 1999.

In December 2001 the Total Army Personnel Command (PERSCOM) informed the applicant’s command at Fort Bliss that the applicant would be separated from active duty [as a two time non select for promotion] for the purpose of enlisting in the Regular Army.

On 7 December 2001 the applicant submitted his unqualified resignation from the Army to be effective 1 March 2002 in order to enlist in the Regular Army to continue his career as an enlisted soldier.  

In the processing of this case an advisory opinion was obtained from PERSCOM. That command stated that the law required that he be separated on the first day of the seventh month after the Secretary of the Army approved the promotion list, and that he had to be released from active duty on 1 March 2002, and the applicant was so advised.  The command stated that the applicant’s request for enlistment in the Regular Army was being processed.  PERSCOM did state that his request for waiver of his mandatory release date was reviewed and that date remained firm; however, it recommend that the applicant’s request for an extension beyond his mandatory removal date be granted for compassionate and operational reasons. 

The applicant nonconcurred with the PERSCOM remark, “Officer’s request for waiver of his mandatory release date (MRD) was reviewed and that date remains firm.”  He did concur with the recommendation by PERSCOM that he be permitted to extend beyond his MRD.     

Information obtained from the Total Army Personnel Command on 26 March 2002 revealed that there was no critical shortage of personnel in the applicant’s MOS at the present time, e.g., an authorization of 154, with an ODP (Officer Distribution Plan) support of 157 versus assignment of 143 personnel in that MOS, and a projected assignment of 160.  Authorizations (103), ODP support (108), assignments (95), and projections (111) at Fort Bliss, also reflect the good posture of that MOS.

The 2001 promotion selection board only considered CW4s who were second time non-selects for promotion to CW5 for selective continuation.  Other warrant officers non-selected for a second time were not considered for selective continuation.

Army Regulation 600-8-24, which establishes the policies and procedures for the separation of commissioned and warrant officers, states that chief warrant officers on the active duty list twice non-selected for promotion to the rank of CW3, CW4, or CW5 will be involuntarily released from or discharged unless they are, (1) selectively continued, (2) within 2 years of retirement (completes 18 or more years AFS on their scheduled release date), or (3) retired.  Chief warrant officers will be separated on the 1st day of the 7th calendar month after approval of the promotion board's report unless earlier release is voluntarily requested or retention on active duty in a Reserve status is approved by the Secretary of the Army or his or her designee.  A warrant officer who is within 2 years of qualifying for retirement under chapter 6 of this regulation (20 years active Federal service) on his or her scheduled release date and who can so qualify prior to attaining the maximum age will be retained on active duty until the last day of the month following the month he or she qualifies for retirement.  An officer's discharge under this paragraph will be under honorable conditions. 

Section 3258, title 10, USC states that any former enlisted member of the Regular Army who has served on active duty as a Reserve officer of the Army, or who was discharged as an enlisted member to accept a temporary appointment as an officer of the Army, is entitled to be reenlisted in the Regular Army in the enlisted grade that he held before his service as an officer, without loss of seniority or credit for service, regardless of the existence of a vacancy in his 

grade or of a physical disability incurred or having its inception in line of duty, if (1) his service as an officer is terminated by an honorable discharge or he is relieved from active duty for a purpose other than to await appellate review of a sentence that includes dismissal or dishonorable discharge, and (2) he applies for reenlistment within six months (or such other period as the Secretary of the Army prescribes for exceptional circumstances) after termination of that service. 

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.  While the Board can only speculate on the reasons the applicant was not selected for promotion to CW3 there is no evidence of any error or injustice in his non-selection.  The applicant’s records indicate that while his performance was certainly successful it was not truly exceptional as evidenced by his consistent center of mass ratings.  Although the Board can certainly sympathize with the applicant’s non-selection for promotion his separation would be in accordance with established laws and regulations.  The increased zone of eligibility for promotion of the technician warrant officers, which the applicant states resulted in his being in the primary zone of consideration a year earlier than his aviation peers, is a situation that all technical warrant officers faced and as such did not, in and of itself, create an injustice to the applicant.

2.  The Board notes the statement by the applicant that the promotion board did not select all of the total CW2s that could have been selected for promotion to CW3; however, the fact that the board did not select the total number it could tends to support a conclusion that the promotion board likely felt that the records of the officers who were not selected were not strong enough to warrant selection for promotion merely to meet a selection number ceiling.

3.  The Board also notes the statements made by the applicant and members of his chain of command concerning the shortage of warrant officers in his specialty; however, that shortage is not deemed to be critical and is projected to be resolved.  Nonetheless, the Board does not believe that retaining individuals simply to fill vacancies is in the best interest of the Army.  In this particular case the Board does not believe that the applicant’s situation or record is so unique or outstanding that retention as an exception to established laws and policies is warranted.

4.  The Board does note that the applicant has applied for enlistment in the Regular Army in order to complete sufficient service for retirement purposes, and although this may not be sufficiently comforting, it is an option not available to all officers facing involuntary separation as a result of promotion non-selection.

5.  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 that requirement.

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

__RVO__  __RJW __  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001065668	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020409	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136	
2.	338	
3.		
4.		
5.		
6.