IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150003924 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his request for correction of his record to show: a. he was promoted to chief warrant officer two (CW2) with a date of rank (DOR) and effective date of 27 February 2006; or b. if the above relief is not granted he be retired in the rank of CW2 or chief warrant officer three (CW3) on 31 March 2010; or c. at a minimum, if neither of the above requests are granted that his records be changed to show he was eligible to receive retirement pay in the rank of CW3 effective 24 May 2006. 2. The applicant further requests that if the above requested relief is not granted that his records be changed to show he was retired: a. under the provisions of Army Directive 2012-25 (Temporary Early Retirement Authority (TERA) or equivalent policy existing in 2006; or b. due to physical disability; or c. allowed to revert to pay grade E-7 in lieu of discharge. 3. The applicant states, in effect, that the prior Army Board for Corrections of Military Records (ABCMR) decisional document was flawed and the evidence of record was either incomplete, incorrect, or should be looked at again. He requests that the Board again review the information and arguments as previously submitted. In a six-page statement he challenges several points as set forth in the prior decisional document. He states that his OER's show he was recommended for promotion. 4. He further requests that if the Board is inclined toward denying relief that he be permitted a personal appearance before the Board. 5. The applicant provides copies of e-mails with attachments related to his Officer Evaluation Report (OER) and its appeal, potential for enlistment, requests for Congressional inquiries by himself and his wife, an internet article on early retirement programs, and the TERA Army Directive 2012-25. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting both a reconsideration of a prior ABCMR decision and consideration of new issues requiring Board review. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130002833, on 4 February 2014. 3. The applicant, with prior Special Forces enlisted service, was appointed a U.S. Army Reserve (USAR) Special Forces warrant officer one (WO1) on 27 February 2004. In 2005, the applicant transferred from the USAR to the Regular Army (RA) in pay grade WO1. 4. The applicant successfully completed the requisite preliminary training courses for his specialty in 2004 and was assigned to duty with Company B, 2nd Battalion, 5th Special Forces Group (Airborne), Fort Campbell, KY. This is the only duty assignment listed on the available Officer Record Brief. 5. The applicant's first Officer Evaluation Report (OER), for a period ending 21 December 2004, shows assignment as the Assistant Detachment Commander of a twelve-man Special Forces Operational Detachment Alpha (ODA). a. His rater marked him as "Outstanding Performance, Must Promote." b. His intermediate rater marked him in the top 50% and recommended promotion to CW2. c. The senior rater marked him as best qualified and recommended he be promoted to CW2 and sent to the Warrant Officer Advanced Course at the earliest opportunity. 6. The applicant received a reprimand for threatening an official who made an on the spot correction concerning the proper wear of his civilian clothes during physical fitness training. It is stated that the applicant escalated this corrective action into a confrontational situation. 7. The applicant was the subject in an 11 May 2005 Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) (AR 15-6) investigation. The AR 15-6 reporting official states: a. The applicant was reprimanded for his conduct on 4 May 2005 when he threatened an official who made an on the spot correction concerning the wear of his civilian clothes during physical training hours by escalating the situation instead of making the minor correction and moving on with his business. b. The reprimanding official stated that, regardless of whether or not the applicant believed he was in the right or wrong concerning tucking in his shirt, it is never appropriate to lose your temper and tell another person that you are going to kick their ass, or words to that effect. c. The reprimanding official further stated that as an officer, the applicant knew the penalties for assault and communicating a threat. Although the applicant was not a commissioned officer, the spirit of conducting himself as an officer and a gentleman still applied to him. The applicant's conduct was inexcusable and unlawful. He showed a complete lack of judgment and brought great disrespect upon himself and his ability to function in the U.S. Army's premiere war-fighting units. As an officer he was expected to take pride in his actions and to set the example in his words and deeds. His actions show he failed to meet this high standard and he has cast doubt on his ability to competently perform as an officer within the 5th Special Forces Group. 8. The applicant's OER, ending 6 June 2005, shows assignment as the Assistant Detachment Commander of a twelve-man Special Forces ODA. a. His rater marked him as "Satisfactory Performance, Promote" stating – [The applicant] has a weak understanding of military decision making and planning. [The applicant's] efforts during Desert Magic III allowed the team to develop a picture of the insurgent network being targeted by the team. [The applicant's] attempts to organize and collate targeting as it was collected led to the team prosecuting two targets and developing one other target for the conventional force to prosecute. In early May, [the applicant] had an encounter with the Division Command Sergeant Major regarding the wear of a civilian PT uniform. As a result of this encounter [the applicant] became distracted and unable to perform pre-mission tasks assigned him. [The applicant] was not available to the team during most of May as the team conducted MDMP, orders production and brief back. He became a distracter to the team; as a result [the applicant] was moved to the Company to allow him time to work on his personal and administrative actions. b. His intermediate rater stated – Due to administrative actions and the time required to accomplish them, [the applicant] was moved from the ODA to the [Operational Detachment Bravo]. He has some potential for promotion to CW2. c. His senior rater marked him as fully qualified stating – [The applicant's] performance during this rating period has been marginal at best. He was removed from ODA because repetitive administration actions prohibited him from completing his pre-mission training for Operation Iraqi Freedom III. [The applicant] possesses some potential with additional mentoring. d. The OER is marked as a referred OER at Part IId. On the copy provided by the applicant the date blocks for all signatures are blank, but the copy included in the official record shows dates of signature as "20050607." 9. On 26 October 2005, the applicant submitted a ten-page memorandum for record addressing the referred OER for the period ending 6 June 2005. 10. The applicant's Interactive Personnel Electronic Records Management System record does not contain – * any official documentation specifically addressing why the applicant was not promoted * the letter of reprimand 11. On 26 May 2006, the applicant was honorably discharged as a WO1 under AR 600-8-24 (Officer Transfers and Discharges), paragraph 2-41 for non-selection for a permanent promotion. 12. AR 600-8-24, paragraph 3-7 provides in certain circumstances for a former enlisted member of the RA who was discharged from the RA for the purpose of appointment as a Reserve warrant officer who was on active duty as a Reserve warrant officer to submit a memorandum of resignation from his or her USAR warrant officer appointment for the purpose of reenlistment in the enlisted grade held before serving as an officer or warrant officer. The individual must do so within 6 months of release from active duty as an officer or warrant officer. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 2 years, 2 months, and 28 days of service as a WO1 with 13 years, 11 months, and 7 days of prior active service. His awards are shown as the Army Commendation Medal, Joint Service Achievement Medal, Army Achievement Medal, Joint Meritorious Unit Award, Valorous Unit Award, Army Good Conduct Medal, National Defense Service Medal (2nd Award), Armed Forces Expeditionary Medal, South West Asia Service Medal with one bronze service star, Non Commissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, NATO Medal, Kuwait Liberation Medal – Saudi Arabia, Kuwait Liberation Medal – Kuwait, Combat Infantryman Badge, Special Forces Tab, Expert Infantryman Badge, Driver and Mechanic Badge – Mechanic Bar, Parachutist Badge, Air Assault Badge. 14. On 4 February 2014, the ABCMR denied the applicant's request for promotion to CW2 and CW3 and retirement in either of those grades. 15. On 3 February 2015, the applicant requested a 10-day extension to submit his request for reconsideration. If the extension was not granted, he requested that the date of postmark of the prior ABCMR decision notification, 12 February 2014, be utilized to allow for his submission within a timely manner. 16. On 4 February 2014, a 10-day extension was granted and the applicant was notified via e-mail of the extension. The applicant's reconsideration request is dated 20 February 2015 and was received on 23 February 2015. 17. In his reconsideration request, the applicant provides paragraph by paragraph comments, contentions, questions, or challenges to most of the paragraphs in the prior decisional document. He contends that the Board needs to obtain unredacted copies of the investigations involved in the case to get a true picture of the events. His comments are basically a restatement of the comments and contentions provided either at the time the documents were prepared or in the prior decisional document. He again raises the contentions of racial discrimination and reiterates that the reprimand and pass-over for promotion were retaliatory in nature due to his reporting wrongdoings within his command. He provides no additional supporting evidence to substantiate his statements. 18. The applicant provides no supporting documentation for his alternative request for reversion to an enlisted status following his discharge or for a medical/disability retirement consideration. 19. Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, chapter 1 states that TERA provides the Secretary of Defense a temporary force management tool with which to affect the drawdown of military forces and yet maintain an adequate and effective well trained military force. a. TERA provides the authority for voluntary retirement of members on active duty with at least 15 years, but less than 20 years of creditable service. An eligible member of the Armed Forces may apply for early retirement under the program and receive an annuity equivalent to 2.5 percent of retired pay base for each year of service completed and a deduction of one percent for each year short of 20 years of service. The request is subject to the approval of the Secretary concerned. b. The Secretary of the Military Department concerned may reduce the 20 years of creditable service requirement to as few as 15 years, under TERA, for retirements during the periods of: (1) 23 October 1992 and ending 1 September 2002 for regular and non-regular retirements; and (2) 31 December 2011 and ending 31 December 2018 for regular retirements only. 20. AR 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating. 21. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical or mental condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 22. AR 15-185 (Army Board for Correction of Military Records), states: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. If a request for a reconsideration is received within 1 year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. c. If the ABCMR receives the request more than 1 year after the ABCMR's action or after the ABCMR has already considered one request for reconsideration, the ABCMR staff will review the request to determine if substantial relevant evidence is submitted showing fraud, mistake of law, mathematical miscalculation, manifest error, or the existence of substantial relevant new evidence discovered contemporaneously or within a short time after the ABCMR's original consideration. If the ABCMR staff finds such evidence, it will be submitted to the ABCMR for its determination of whether a material error or injustice exists and the proper remedy. d. Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. Although the applicant has requested to personally appear before the Board in the event that the Board is inclined to deny him relief, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance. 2. The applicant's request for reconsideration was not submitted within 1 year of the original decision or within the time frame of the extension granted. The statements on the issues for which he requests reconsideration appear to be, in essence, a reiteration of those made at the time of his original application. 3. The applicant has not submitted and the record does not contain any evidence that he was formally recommended for promotion to CW2. The promotion recommendation on an OER is the rating officer's opinion of a Soldier's promotion potential but does not constitute a formal recommendation for actual promotion. 4. The applicant has submitted no substantial relevant evidence that shows fraud, mistake in law, a mathematical miscalculation, or manifest error in the prior decisional document. Further, the applicant has not provided any substantial relevant new arguments or evidence discovered contemporaneously with or within a short time after the Board’s original decision that meets the criteria set forth in AR 15-185 on the issues of – * promotion to CW2 with a date of rank and effective date of 27 February 2006 * changing his retirement rank to CW2 * eligibility or considered for promotion to, service as, or retirement as a CW3 * receipt of retirement pay in the rank of CW3 5. Specifically, on the issues of promotion to and retirement as a CW3, since the applicant was never promoted to CW2, he was never eligible to be considered for promotion to CW3. 6. The applicant's request for retirement under the TERA provisions of law is without merit. In order to be considered under TERA, a Soldier must be released from active duty during a TERA drawdown period. There was no authorization for TERA retirements in 2006. Therefore, there is no valid reason to consider the applicant for a TERA retirement. 7. The applicant has not provided and the record does not contain any medical evidence that shows he was suffering from any physical or mental disability warranting processing through the MEB/PEB process. 8. Further, his OER at the time of his discharge does not indicate that he was unable to perform the duties of his office, grade, rank or rating due to physical disability. 9. The applicant has not provided and the record does not contain any evidence to support the contentions of racial discrimination or retaliatory acts on the part of his chain of command. 10. There is no provision in law or regulation for a reversion from either a commissioned or warrant officer rank to a previously held enlisted rank with the exception of resignation for the purpose of reenlistment. Based on the reason for his discharge, if the applicant desired to continue on active duty following his discharge as a warrant officer, he would have needed to go through the enlistment process. He did not do so. 11. The applicant's contentions were very carefully considered; however, based on the evidence there does not appear to be any error or injustice in his case which would have substantially harmed him or infringed on his rights. As such, there is an insufficient basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records concerned or to amend the decision of the ABCMR set forth in Docket Number AR 20130002833, dated 4 February 2014. ___________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150003924 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003924 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1