RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 December 2006
      DOCKET NUMBER:  AR20060003808


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. John M. Moeller               |     |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, that his service in the IRR (Individual Ready
Reserve) be removed from his records in order to rejoin the North Carolina
Army National Guard (NCARNG).

2.  The applicant states, in effect, that he was unknowingly transferred to
the IRR and was not required to be in the IRR.  He states that this portion
of his records should be corrected or removed to show that he was not in
the IRR in order to rejoin the NCARNG as an aviator.

3.  He adds that he had served all required time for the IRR between active
duty (1979 to 1986) and ARNG (1986 to 1990).  He did not realize he was
transferred to the IRR in 1990 and was passed over twice for promotion to
CW3 (Chief Warrant Office/W-3), once in 1992 and 1993, and was discharged
from the USAR around the 1993 - 1994 timeframe.

4.  He states that he was unaware that he was assigned to the IRR or had
been considered for promotion.  After 9 September 2001, he began the
process of rejoining the military.  Last November 2005, he was appointed in
the NCARNG. In December 2005, he discovered that he was being discharged.
He is now requesting that the IRR service was incorrect and that the IRR
entries be removed from his records.  Once this is accomplished, he would
be able to rejoin the NCARNG.

5.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 September 1993, the date of his discharge from the
IRR.  The application submitted in this case is dated 1 February 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he was appointed in the Reserve
with a concurrent call to active duty as a warrant officer one (WO1/W-1) on
22 June 1982, as an aviation officer, with prior Regular Army enlisted
service.  He was released from active duty on 22 June 1986.  He was
subsequently appointed in the Texas Army National Guard (TXARNG), as a
chief warrant officer two (CW2/W-2) effective 11 December 1986.

4.  On 15 October 1990, the applicant requested separation/resignation
effective 2 November 1990, with assignment to the IRR, USAR Control Group,
Reinforcement.  The commander recommended approval on the same day.

5.  The applicant continued to serve in the TXARNG until he was honorably
discharged on 2 November 1990, in the rank and pay grade of CW2/W-2.  He
was transferred to the USAR Control Group (Reinforcement).

6.  The applicant was considered and not selected for promotion to CW3 by
the 1992 and 1993 Reserve Components Selection Boards (RCSB).

7.  The applicant was honorably discharge from the USAR Control Group
(Reinforcement) on 24 September 1993, based on his two-time non-selection
for promotion to CW3.

8.  After a break in service, the applicant was appointed in the NCARNG as
a CW2/W-2, effective 22 November 2005.  He continued to serve until he was
honorably discharged on 1 April 2006, for fraudulent entry.  On 9 May 2006,
his appointment in the NCARNG and previously extended Federal recognition
was revoked.

9.  On about 14 December 2005, the applicant submitted a NGB (National
Guard Bureau) Form 62-E (Application for Federal Recognition as an Army
National Guard Officer or Warrant Officer and Appointment as a Reserve
Commissioned Officer or Warrant Officer of the Army in the ARNG of the
United States).  In   item t (Record of All Military Service), the
applicant withheld information about his service in the Reserve and his
service in the TXARNG.

10.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that mandatory
selection boards will consider Reserve warrant officers to grades chief
warrant officer three and chief warrant officer four.  First consideration
will occur well in advance of the date the officer will complete the time
in grade requirements.  The next board considering his or her grade and/or
branch will reconsider those officers who were not selected for promotion
on the first consideration.
11.  The regulation also specifies that officers who twice fail to be
selected for promotion to the grade of chief warrant officer three will not
be considered again for promotion, and will be transferred to the Retired
Reserve, if they are eligible and request such transfer, or they will be
discharged.  Officers non-selected for promotion will be sent notification
of the approved board recommendations.

12.  Army Regulation 135-175 provides policy, criteria, and procedures
governing the separation of officers of the Army National Guard of the
United States (ARNGUS) and the United States Army Reserve (USAR), except
for officers serving on active duty or active duty training, exceeding 90
days.  Paragraph      4-4 pertains to the removal of USAR officers from an
active status.  It states, in pertinent part, that an officer in the grade
of CW2 will be removed from an active status for failure to be selected for
promotion after a second consideration by a DA RCSB.

13.  Army Regulation 140-10, in effect at the time, set forth the basic
authority for the assignment, attachment, detail and transfer of USAR
Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers
from active status and states, in pertinent part, that Soldiers removed
from an active status will be discharged or, placed in the IRR, or, if
qualified and if they so request, will be transferred to the Retired
Reserve.  Paragraph 7-4 requires removal of officers who are twice not
selected for promotion to chief warrant officer three, chief warrant
officer four, captain, major, or lieutenant colonel.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that while the applicant was serving in the TXARNG,
as a CW2/W-2, he requested separation/resignation.  In his request, he
elected assignment to the IRR after his discharge from state status.  His
discharge was approved.  He was honorably discharged from the TXARNG on
2 November 1990, in the rank and pay grade of CW2/W-2 and was transferred
to the USAR Control Group (Reinforcement).

2.  The applicant was considered and not selected for promotion to CW3 by
the 1992 and 1993 RCSBs.  He was notified of his nonselections and was
discharged on 24 September 1993, based on his two-time non-selection for
promotion to CW3.

3.  After a break in service, he was appointed in the NCARNG effective
22 November 2005, in the rank and pay grade of CW2/W2.  He was honorably
discharged on 1 April 2006, due to fraudulent entry.  His appointment was
revoked effective 9 May 2006.
4.  The applicant contends that he was unknowingly transferred to the IRR
and was not required to be in the IRR.  The evidence shows that the
applicant voluntarily requested transfer to the IRR after his
separation/resignation from the TXARNG.

5.  The applicant failed to reveal his prior service in the TXARNG and in
the Reserve prior to his appointment in the NCARNG on 22 November 2005.
His service in the IRR is correct according to regulatory guidance.
Therefore, there is no basis to remove his service in the IRR in order for
him to join the NCARNG.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 September 1993; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 23 September 1996.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JMM___   _PMS___  __KAN__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.









2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Kathleen Newman______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003808                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061219                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19930924                                |
|DISCHARGE AUTHORITY     |AR .135-175 . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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