RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060015976 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 promotion to Chief Warrant Officer Four (CW4) effective 8 March 2004 and to receive back pay and allowances for the period from 8 March 1998 to 18 December 2002 (difference of CW2 to CW3 pay) and from 8 March 1998 to present, the difference of CW3 to CW4 pay).  

2.  The applicant states, in effect, that the National Guard Bureau (NGB) has refused to promote him to CW4 for 2 years.  He says that he entered the Tennessee Army National Guard (TNARNG) on 8 March 1992 in the rank of CW2.  On 1 January 1998, his civilian job transferred him to Italy.  At the same time he was transferred to the Individual Ready Reserve.  On 8 March 1998, he was eligible for promotion to CW3.  Due to an error by the Reserve Component personnel, he was not promoted.  He requested and received a correction to his military records and in September 2003 was promoted to CW3 with a date of rank of 8 March 1998.  In January 2000, the applicant returned from Italy and re-entered the TNARNG.  In January 2003, he was activated for duty in support of Operation Noble Eagle.  While there he was informed that his promotion to CW3 had been corrected and he then assembled a promotion packet for consideration to CW4.  He further states that he requested and was denied attendance at the Warrant Officer Senior Course (WOSC).  He was told that he was needed to support the mission and that the course was waivable.  On 22 February 2004, the applicant was released from active duty.  When he was not promoted to CW4 on 8 March 2004, he inquired and was told that he needed to complete the WOSC to be eligible for promotion consideration.  The waiving of the WOSC requirement was not unusual and had been done on numerous ocassions.  By the time he found out that he was not going to be promoted, another unit in the TNARNG was going to Iraq.  It needed pilots, so the applicant volunteered to go. Since this unit was leaving on 10 August 2004, he did not have time to attend the WOSC and was told that since he would be on active duty, the course was waiverable.  In Iraq, he was again told that his promotion was denied because he had not completed the WOSC.  He said that both a judge advocate general officer and a personnel officer had told him that the WOSC was not required while on active duty.  He was informed that they had misspoke.  He was released from active duty on 24 November 2005 and applied to attend the WOSC.  He completed the WOSC on 19 May 2006.  

3.  The applicant provides copies of his Certificates of Release or Discharge from Active Duty (DD Forms 214); Promotion Letter, dated 21 November 2003; Annex F, Promotions, extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers); and a copy of his Service School Academic Evaluation Report (DA Form 1059).
CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a member of the TNARNG.  He was a CW3 with a date of rank of 8 March 1998.

2.  On 1 May 2003, an Army Standby Advisory Board convened to consider the applicant for promotion to CW3 under the same criteria as used for the 1999 mandatory board.  It recommended him for promotion with a date of rank 
8 March 1998. 

3.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), in effect at the time, provided in pertinent part, that unless otherwise entitled by law, antedating of either the effective date of promotion or promotion eligibility dates will not entitle a Reserve Component warrant officer to increased pay and allowances.  This applies to any period of service before the date of the promotion notice. 

4.  On 26 April 2004, the Deputy Chief of Staff, Personnel, TNARNG, provided a memorandum to the applicant informing him that his request for promotion to CW4 was denied because he had not completed the WOSC.

5.  On 1 June 2004, the Chief, Personnel Policy and Readiness Division, NGB, informed the applicant that he must comply with all NGB promotion criteria.  It specifically indicated that he must complete the WOSC to be considered educationally qualified for promotion to CW4.

6.  On 14 June 2004, the Deputy Chief of Staff, Personnel, TNARNG denied the applicant's request for promotion to CW4.  He informed the applicant that he would not be eligible for promotion to CW4 until such time as he completed the WOSC.

7.  On 12 July 2004, the Administrative Officer, TNARNG, submitted a request, on the applicant's behalf for a waiver of the WOSC.  On 14 September 2004, the NGB denied the applicant's request for a waiver.

8.  On 19 May 2006, the applicant satisfactorily completed the WOSC.

9.  Orders 144-873, TNARNG, dated 24 May 2006, promoted the applicant to CW4 effective 19 May 2006.

10.  Army Regulation 135-155 provides, in pertinent part, that completion of the WOSC is required for promotion to CW4.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was considered by a standby advisory board and selected for promotion.  However, the governing regulations preclude granting an effective date for this promotion earlier than the date of the promotion notice.  Therefore, the applicant's request to establish an earlier effective date should not be granted. 

2.  The evidence clearly shows that the applicant requested a waiver of the education requirement for promotion to CW4.  However, the NGB denied his request and so informed the applicant that he was required to complete this course of study prior to being promoted.

3.  While the applicant contends that numerous waivers have been approved, there is no regulatory requirement mandating the NGB to favorably consider all such requests.   

4.  Evidence shows that the applicant was promoted to CW4 effective the same day he completed the WOSC.

5.  In view of the above, the applicant's request should not be granted. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRS __  ___LDS__  __CD___  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.





_     _Linda D. Simmons_______
          CHAIRPERSON




INDEX

CASE ID
AR20060015976
SUFFIX

RECON
 
DATE BOARDED
20070605 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.