RECORD OF PROCEEDINGS


      IN THE CASE OF:      .


      BOARD DATE:            31 March 2005
      DOCKET NUMBER:   AR20040001962


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his chief warrant officer three
(CW3) date of rank (DOR) be changed to 24 September 1996.

2.  The applicant states, in effect, that he was promoted to chief warrant
officer two (CW2) on 24 September 1990, and has continuously served without
a break in service ever since.  He states that he changed his status from
active duty to Army National Guard (ARNG), from ARNG to United States Army
Reserve (USAR) Troop Program Unit (TPU) and from USAR TPU to USAR active
duty in the Active Guard Reserve (AGR) program.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214), ARNG Oath of Office (NGB
Form 337), ARNG Special Orders Number 95, ARNG Separation Document (NGB
Form 22), ARNG Separation Orders, ARNG Special Orders Number 42.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he served on active duty as a warrant
officer for 8 years and 9 months between 2 June 1987 and 1 March 1996, at
which time he was honorably separated.  The DD Form 214 he was issued at
the time confirms he was transferred to Company C, 1st Battalion, 131st
Aviation, Gypsum, Colorado.  It also shows that he held the rank of CW2 on
the date of his separation.

2.  On 2 March 1996, the applicant was appointed a CW2 in the ARNG.  He
continued to serve in the ARNG for 4 years, 3 months and 21 days until
being honorably separated on 22 June 2000 and transferred to the USAR.

3.  The applicant was considered and selected for promotion by a mandatory
Reserve Component Selection Board (RCSB) that was approved on 31 July 2001.
 A promotion memorandum issued by the United States Army Reserve Personnel
Command (ARPERSCOM), dated 25 October 2001, authorized the applicant’s
promotion to CW3 with a DOR of 19 September 2001.

4.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Personnel Division, National Guard Bureau (NGB).
This ARNG official recommended disapproval of the applicant’s request for a
change to his CW3 DOR.  His opinion indicated that the governing regulation
stipulates that promotion of warrant officers in the ARNG is a function of
the State, and whether to promote or not is left to the discretion of The
Adjutant General (TAG) of the State.  Further, the regulation specifies
that promotions will only be accomplished when there is a valid position
vacancy in the unit.

5.  On 24 February 2005, the applicant was provided a copy of the NGB
advisory opinion in order to have the opportunity to response.  To date, he
has failed to reply.

6.  National Guard Regulation 600-101 prescribes the NGB policies governing
the appointment, assignment and management of ARNG warrant officers.
Chapter 7 provides the policy for promotion of ARNG warrant officers and it
states, in pertinent part, that this is a function of the State.  It
further states, in pertinent part, that promotion will only be accomplished
when a valid vacancy exists in the unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his CW3 DOR should be changed to 24
September 1996 was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The evidence of record confirms the applicant was not promoted to CW3
while a member of the ARNG.  Therefore, it is presumed a unit position
vacancy did not exist and/or State officials elected not to promote him for
some other valid reason.

3.  Further, the record shows that the applicant was selected for promotion
by the first mandatory RCSB that convened after his transfer into the USAR,
and that he was assigned an appropriate DOR based on that selection.

4.  Absent any evidence from members of his State chain of command or other
responsible State officials that show his non-selection for promotion to
CW3 in the ARNG was the result of some error or injustice, there is an
insufficient evidentiary basis to support an adjustment of his DOR at this
time.

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 and counsel
have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  ___WDP_  ___LGH _  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 of the individual concerned.





            ____William D. Powers____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001962                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/03/31                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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