RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      17 January 2007
      DOCKET NUMBER:  AR20060007127


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Roland Venable                |     |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 adjustment to his date of rank for chief warrant
officer two (CW2) from 18 November 2002 to 22 June 2001.

2.  The applicant states that in 1997 he was selected to the rank of
warrant officer one (WO1).  He was advised to enroll in the Correspondence
Course for the 131A military occupational specialty (MOS).  The 131A course
is lengthy, it has two parts of correspondence courses (Phases I & III) and
two course held at Fort Sill (Phases II & IV).  He could not complete the
course in two years due to his civilian work, but applied for an extension
and it was granted.  He completed the entire curriculum and all phases of
the course on 22 June 2001.  As such, this is the day of his MOS as a 131A
WO.  It is also the first day of eligibility for promotion to CW2.

3.  The applicant also states that at the end of his annual training he was
advised that he must complete a promotion packet.  He proceeded to work on
the items required.  One of them was the medical screening.  He was advised
that he would need to take a stress test as soon as possible.  He failed
the test even though he felt fine and was put on a restrictive profile and
declared not medically fit for deployment, and to cease training.  He was
not permitted to pursue his promotion until the medical issue was resolved.
 In May 2002, the Medical Review Board (MRB) cleared him for full
participation in all training activities.  The bad news was that the
findings of the MRB were dated 9 January 2002.  He was medically cleared to
continue his service.  However, no progress had or could have been made to
secure his promotion to CW2 during this period of delay.

4.  The applicant further states that the release of the MRB results
allowed him to once again start the progress required for his promotion
packet.  However by this time, some 234 days had passed since he graduated
from his 131A school and had become eligible for promotion.  He feels what
is at issue is at the unit level and not that of an individual Soldier.
The promotion was not handled by unit level personnel in an expeditious
and/or competent manner.  The packet and associated documents should have
been prepared no later than his graduation from the last phase of the
correspondence course.  It should be noted that by Army Regulation 600-8-
29, the promotion to CW2 is considered to be automatic based on the date
that the WO1 becomes eligible.  This applies unless the officer is in a non-
promotable status.  He was fully qualified for promotion on 22 June 2001,
and had the packet been prepared in a timely manner by the unit staff he
would have been promoted on that day.

5.  The applicant provides copies of his Service School Academic Evaluation
Reports, his Net Operator Course on the Firefinder completion certificate,
his Net Maintenance Course on the Firefinder completion certificate, his
physical profile forms, the cardiac study from his private physician, his
Stress ECG Report, his Exercise Summary Report, his Worst Case 12 Lead
Report, his clearance from the State Surgeon, his CW2 promotion orders, his
2004 Letter of Acceptance memorandum, his PAARNG transfer orders, his DD
Form 214 (Certificate of Release or Discharge From Active Duty), and his DD
Form 215 (Correction to DD Form 214), in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 November 2002, his promotion effective date and date of rank
for CW2.  The application submitted in this case is dated 22 April 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 United
States Army Reserve (USAR), as a second lieutenant, effective 23 April
1972.  He was promoted to first lieutenant effective 7 June 1975 and to
captain effective 2 December 1978.  He was discharged from the USAR
effective 16 August 1986.

4.  The applicant enlisted in the PAARNG, in pay grade E-5, effective
22 December 1995.  He was discharged effective 28 July 1997.

5.  The applicant was appointed in the PAARNG, as a WO1, effective 29 July
1997.

6.  The applicant completed the Field Artillery (FA) Radar Technician WO
Basic Course (WOBC) on 14 January 2000, the FA Targeting Technician WOBC
Reserve Component-Phase 2 on 14 April 2000, the Target Acquisition WOBC
22 June 2001, the Net Operator Course on the Firefinder on 14 July 2001,
and the Net Maintenance course on the Firefinder on 20 July 2001.

7.  On 29 July 2001, the applicant was given a physical profile for Phase
II CVSP Failure.  His assignment limitations were no physical training
(PT), no Army Physical Fitness Test (APFT), and no annual training (AT).
He was also found not medically fit for deployment pending review of CVSP
Phase II results by the State Surgeon.

8.  On 8 August 2001, the applicant was given a physical profile for Phase
II CVSP Failure.  His assignment limitations were PT at own pace, no APFT,
may attend inactive duty training in light duty and administrative status,
may attend AT in a light duty and administrative status only, and no field
duty.  The profile also stated the applicant was pending review of CVSP
Phase III per the State Surgeon.  He was also found not medically fit for
deployment and pending review of CVSP Phase II results by the State
Surgeon.

9.  On 9 January 2002, the applicant was cleared for APFT by the State
Surgeon, PAARNG.  On 22 May 2002, the applicant was cleared from Phase II
CVSP Failure.

10.  On 12 March 2003, the PAARNG issued Orders Number 071-015 promoting
the applicant to CW2 with a date of rank of 18 November 2002.

11.  On 1 April 2003, the National Guard Bureau (NGB) issued Special Orders
Number 82 AR extending the applicant Federal Recognition in the grade of
CW2 effective 18 November 2002.

12.  In an advisory opinion, dated 1 December 2006, the Chief, Personnel
Division, Departments of the Army and the Air Force, NGB, reiterates the
applicant's request and statements.  The NGB official stated the applicant
completed the WOBC, FA Radar Technician Phase II on 12 July 1997 and the
Target Acquisition WOBC Phase IV on 22 June 2001.  He also completed the
Net Operator Course on the Firefinder on 14 July 2001 and on 20 July 2001
the Net Maintenance Course.  The applicant was given a temporary profile on
29 July 2001, by the medical facility in which it is stated that he was not
medically fit for deployment.  In August 2001, another medical review
reflects continuance on the temporary three profile with attendance to AT
and light duty.  On 21 November 2001, he was cleared by a private medical
physician.  He was cleared by the State Surgeon's office through an MRB on
9 January 2002, which returned him to full duty.

13.  The NGB official also stated that the PAARNG issued Orders Number 071-
015 on 12 March 2003, for promotion to CW2, with an effective date of
18 November 2002.  Federal Recognition Special Orders Number 82 AR was also
issued with the same effective date.  In accordance with National Guard
Regulation 600-101, chapter 7, paragraph 7-7, to be considered for Federal
Recognition and concurrent Reserve of the Army promotion, an ARNG WO must
be in an active status, duty MOS qualified, be medically fit in accordance
with Army Regulation 40-501, meet height and weight standards as prescribed
in Army Regulation 600-9, have completed the minimum years of promotion
service, have completed the minimum military education, have passed the
APFT within the timeframe prescribed (Active Guard Reserve (AGR) status is
6 months, non-AGR status is 12 months), and be recommended by his or her
immediate commander.

14.  The NGB official further stated that NGR 600-101, chapter 7, also
states that the promotion of WOs in the ARNG is a function of the State.
If The Adjutant General chooses not to promote an officer, he or she is not
obligated to do so.  Army Regulation 15-185, chapter 2, paragraph 2-4,
states that applicants must file an application within three years after an
alleged error or injustice is discovered or reasonably should have been
discovered.  The Army Board for Correction of Military Records may deny an
untimely application or may excuse untimely filing in the interest of
justice.

15.  The NGB Personnel Division official recommended that the applicant's
date of rank for CW2 be adjusted from 18 November 2002 to 9 January 2002,
due to the fact that was the date he was found medically fit for duty by
the State Surgeon.  Per NGR 600-101, chapter 7, one of the requirements for
promotion to the next higher grade states that the Soldier must be
medically fit in accordance with Army Regulation 40-501.

16.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 7 December 2006 and he concurred on 14
December 2006.

17.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve and ARNG WOs.  This regulation specifies that WOs
serving in a grade below CW4, in an active Reserve status, may be selected
for promotion provided they meet the promotion time in grade and military
education requirements not later than the date the selection board
convenes.  Promotion to CW2 requires completion of 2 years in the lower
grade.

18.  Army Regulation 600-8-29, prescribes the policies and procedures for
the promotion of Regular Army WOs.  This regulation does not govern the
promotion of Reserve and ARNG WOs.


DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his date of rank for CW2 to 9 January 2002, the date he was
found medically fit for duty by the State Surgeon.

2.  Therefore, it is concluded that based on a matter of equity and on the
support for favorable consideration expressed by the NGB, Personnel
Division, the applicant's current date of rank for CW2 should be adjusted.

3.  In view of the foregoing, the applicant’s state Army National Guard
records and Department of the Army records should be corrected as
recommended below.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 November 2002; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 17 November 2005.  The applicant did not file within
the 3-year statute of limitations; however, based on the available
evidence, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___J____  __WDP__  _RSV___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to
timely file.  The Board determined that the evidence presented was
sufficient to warrant a recommendation for partial relief.  As a result,
the Board recommends that the state Army National Guard records and the
Department of the Army records of the individual concerned be corrected
by showing he was promoted to chief warrant officer two effective
18 November 2002, with a date of rank of 9 January 2002.


2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
adjustment to his date of rank for chief warrant officer two to 22 June
2001.




                                  _____John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007127                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070117                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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