MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 August 2003 
	DOCKET NUMBER:   AR2002079177

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones, II		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, promotion reconsideration to Chief Warrant Officer Four (CW4).  He further requests that his discharge of 15 October 2002 be revoked and that he be allowed to complete a physical examination in order to attend the Warrant Officer Advance Course (WOAC).

APPLICANT STATES:  That the unreasonable delays in the processing of his Army physical led to his not being qualified to attend the Military Intelligence Warrant Officer Advanced Course (WOAC) and, ultimately, his failure to be promoted to CW4.  He states he started part one of his physical examination in October 2001 and part two in March 2002, and is now near completion.  He states he forwarded a letter to the CW4 Promotion Board explaining the delays in getting his physical examination and requesting a brief extension.  He believes this letter was seen, but not considered. 

In support of his application, the applicant submitted a copy of his notification of promotion status, dated 6 August 2002; a chronological account of attempts to complete his physical examination, dated 30 August 2002; a letter to the Chief, Physical Examinations, Kenner Army Clinic, Fort Lee, Virginia, dated 16 April 2002; and a letter to his Congressman, dated 3 September 2002.

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

He was born on 30 October 1943.  He was promoted to Chief Warrant Officer Three (CW3) on 11 August 1996.  He was a United States Army Reserve (USAR) CW3 serving as an Individual Mobilization Augmentee when he was ordered to active duty on 2 October 2001 in support of Operation Noble Eagle.  The applicant was released from the USAR and assigned to the United States Army National Ground Intelligence Center, Charlottesville, Virginia.  His tour of duty was for 365 days unless extended or terminated by proper authority; it was later extended to 730 days.

On 16 April 2002, the applicant wrote a letter to the Chief of Physical Examinations, Kenner Army Health Clinic, Fort Lee, requesting assistance in completing part two of his physical examination.  He stated that he was scheduled for an "over 40 [years of age] physical" on 13 October 2001, but he was mobilized without notice and had to cancel the appointment to report for active duty.  He stated that he completed part one of his physical and after several attempts he was finally scheduled for part two on 14 March 2002.  He states that during the examination it was determined that he needed more tests due to a surgical procedure he had in 1998.  He states he attempted to contact the National Guard Liaison Office to schedule the second part of his appointment to no avail.

On 6 August 2002, the applicant was informed that the CW4 Department of the Army Reserve Components Selection Board had convened on 22 April 2002 and that he had not been selected for promotion to CW4.  He was informed that he would be removed from active duty no later than 15 October 2002 and discharged unless he was eligible for, and transferred to, the Retired Reserve.

On 2 September 2002, the applicant wrote his Congressman requesting assistance in obtaining a medical examination that he believed had already taken an unreasonable length of time.

On 5 September 2002, the Army Reserve Personnel Command (AR-PERSCOM) amended the applicant's orders of 2 October 2001 thereby changing his original commitment of 365 days to 730 days.

On 15 October 2002, the applicant was released from active duty and was transferred to the Retired Reserve.  

In the processing of this case, an advisory opinion was obtained from the Special Actions Branch, Office of Promotions, Reserve Components, which states that the applicant was considered by the 2001 and 2002 CW4 Department of the Army Reserve Components Selection Boards and not selected.  The opinion stated that, normally, reasons for non-selection are unknown; however, in the applicant’s case he could not be selected based on the fact that his 2001 and 2002 records did not reflect completion of the required military education (WOAC) by the date the boards convened.  The opinion recommended that the applicant be granted a military education waiver under 2002 criteria and be directed to go before a special selection board for promotion.  The opinion further stated the applicant would need to furnish his highest civilian education as well as any other missing material error documents to be used for the special selection board.  The applicant was provided a copy of the advisory opinion and, on 14 December 2002, he concurred with it.

Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.  This regulation includes policy statements, operating tasks, rules in support of operating tasks, and sequential steps to each operating tasks.  Paragraph 2-23 states that an officer will be released from active duty on the last day of the month in which he or she attains the following maximum age unless the officer’s release is sooner required by the maximum service or the officer’s retention is authorized on an individual basis by the Secretary of the Army.  A warrant officer will be released from active duty on attainment of age 60 years or completion of 20 years of qualifying service for retired pay, whichever is later, to a maximum age of 62.  Further, a warrant officer (without commission) may remain on active duty to age 62 years based upon indispensability as determined under the appropriate regulation.

Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR soldiers.  Chapter 6, paragraph 6-6 states that a soldier is deemed to be indispensable only if the Secretary of the Army has provided a finding of indispensable.  Chapter 7 provides reasons for removal from active status.  Paragraph 7-3, provides policy for removal when a soldier reaches the maximum age requirement.  It states that soldiers not sooner removed for another reason will be removed when they reach their maximum age. (See Army Regulation 135-32, paragraph 5b).

Army Regulation 135-32, Retention in an Active Status After Qualification for Retired Pay, covers the retention of certain Reserve Component soldiers in an active Reserve status beyond the date they become qualified for retired pay.  Paragraph 5b states that regardless of whether removal from active status is required based on reaching maximum age or length of service, officers who qualify to receive non-Regular retired pay under the provisions of Title 10 U.S. Code, chapter 1223, on or after reaching age 60 may not receive further credit toward such retired pay unless retained for such credit under the provisions of 10 USC 12308.

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.  Notwithstanding the applicant’s contentions and the advisory opinion, the Board determined that the applicant had failed to properly manage his military career by waiting until the last minute to apply to attend the WOAC.  The applicant had sufficient time following his promotion to CW3 (on 11 August 1996) and prior to his initial consideration for promotion to CW4 (in 2001) to obtain the necessary physical examination and attend the WOAC.  Consequently, by waiting until the last minute, he was unable to complete his physical due to unforeseen events and was therefore unable to attend WOAC.  Completion of the WOAC is a requirement for promotion to CW4.

2.  The applicant knew the requirements for WOAC as well as the requirements for getting promoted; therefore, he should have been more diligent in ensuring that the requirements were met prior to the 2001 and 2002 CW4 Army Reserve Components Selection Boards.

3.  The Board found no reason to revoke the applicant’s discharge in order for him to complete his physical examination and attend the WOAC.  Furthermore, the applicant will reach his mandatory age (60 years) requirement for service as a CW3 on 30 October 2003 (unless permitted to serve to age 62 based on indispensability).  There is no indication that the applicant was indispensable; 

therefore, there would be no point in granting his request even if there had been an injustice or inequity concerning his attempts to complete his physical.

4.  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.

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

__tsk___  __wdp___  __fcj___  DENY APPLICATION

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

INDEX

CASE ID	AR2002079177	
SUFFIX		
RECON		
DATE BOARDED	20030812	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	20021015	
DISCHARGE AUTHORITY	AR 600-8-24	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.1000	
2.		
3.		
4.		
5.		
6.