RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070003575 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Grant

Member

Mr. Rowland C. Heflin

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 he be reinstated as a Chief Warrant Officer Two (CW2) and that he be promoted to Chief Warrant Officer Three (CW3) with a date of rank 22 August 2006.  He further requests that his first and second non-select for promotion to CW3 and resignation of his commission be expunged from his records.  

2.  The applicant states, in effect, that he was a civilian when he was passed over for promotion to CW3.  When he took the Armed Services Vocational Aptitude Battery (ASVAB) to return to the military as a CW2, it was at that time that he learned he was twice passed over for promotion to CW3 in an Individual Ready Reserve (IRR) status.

3.  The applicant further states that he was unaware he was actually passed over after his IRR expiration of term of service (ETS) of 30 December 1997.  At no time prior to his ETS had he ever received a briefing stating that his records would be subject to a promotion board during his IRR (civilian) status.  Because of that lack of knowledge he let his records set stale for three years.

4.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty); a U.S. Army Personnel Command (PERSCOM), MILPER Message Number 98-086, issued 20 February 1998; a DD Form 4/1 and 4/2 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 20 October 2005; a DD Form 1966/1, 1966/2, 1966/3, and 1966/4 (Record of Military Processing Armed Forces of the United States); and a DA Form 2-1 (Personnel Qualification Record – Part II).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 January 1983.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 12B (Cannon Crewman).

2.  The applicant was honorably discharged on 1 October 1990 for the purpose of accepting an appointment as a Warrant Officer (WO).

3.  On 2 October 1990, the applicant was appointed as a Reserve WO.  The appointment memorandum further shows that his appointment was for an indefinite term.  On 2 October 1992, he was promoted to CW2.


4.  On 30 December 1994, the applicant was released from active duty under  the Special Separation Benefit (SSB) early release program after completing    11 years, 11 months, and 26 days of creditable active service and was transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement).  Item 6 (Reserve Obligation Termination Date) of his DD Form 214 for the    period ending 30 December 1994, shows his obligation termination date as       30 December 1997.    

5.  The letters notifying the applicant of the upcoming promotion selection board to CW3 are not available.  On 16 May 2007, HRC, St. Louis, Missouri, Promotions Branch confirmed that their database reflected that a promotion notification was mailed to the applicant's address and that notification letters are mailed out 90 days prior to the selection board.

6.  The Soldier Management System, HRC, St. Louis, Missouri, shows that the applicant was involuntarily discharged from the USAR due to promotion non-selection on 16 November 1998.

7.  On 20 October 2005, the applicant enlisted in the USAR for a 6-year term of service in the rank and pay grade of Sergeant (SGT)/E-5.  On 21 August 2006, he was honorably discharged and immediately reenlisted in the Regular Army on 22 August 2006 for a 4-year term of service.

8.  Army Regulation 135-155 specifies that USAR officers will be considered for promotion by mandatory promotion boards.  To be eligible for consideration for promotion to the next higher grade, in an USAR officer must be in an active status and meet the service requirements.

9.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  It specifies USAR warrant officers in grades CW2 and CW3 who twice fail to be selected for mandatory promotion to CW3 or CW4 will not again be considered for promotion.  Twice non-selected warrant officers will be transferred to the Retired Reserve or discharged.

10.  Army Regulation 140-10, paragraph 4-2, states the IRR consists of pretrained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress.  Control Group (Reinforcement) assignment is authorized for a Soldier with or without a remaining statutory military service obligation.


11.  Under the Special Separation Benefit, an eligible member of the armed forces would receive a lump sum payment equal to 15 percent of the Soldier’s annual basic pay multiplied by his years of active service.  Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years, in addition to any remaining military service obligation based in statute, following the separation from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reinstated as a CW2 and that he should be promoted to CW3 with a date of rank 22 August 2006.  He further contends that his two time non-select for promotion to CW3 and the resignation of his commission should be expunged from his records.

2.  On 2 October 1992, the applicant was promoted to CW2.  He was released from active duty on 30 December 1994 under the early release program and was authorized the SSB with a three-year obligation (i.e. 30 December 1997) in the USAR for receiving the SSB.  

3.  The applicant contends his “ETS” was 30 December 1997 and he was a civilian after that date.  However, he was appointed a WO for an indefinite term, and he had no ETS date.  His obligation to serve ended on 30 December 1997; however, unless he requested discharge or he was involuntarily discharged under any regulatory or statutory provisions, he remained a WO in the USAR.

4.  By regulation, as long as the applicant was in an active status (and his service in the IRR was an active Reserve status) his records were considered by a mandatory promotion board.  While assigned in the IRR, the applicant was twice non-selected for promotion to CW3.  Based on his two non-selections to CW3 and based on the regulatory guidance, he was required to be discharged from the USAR after his second non-selection.  Records at HRC, St. Louis, Missouri indicate he was discharged for that reason on 16 November 1998.  

5.  The applicant further contends that he was unaware he was actually passed over after his IRR “ETS” and that at no time prior to his “ETS” had he ever received a briefing stating that his records would be subject to a promotion board during his IRR status.  However, evidence of record shows that at least one promotion notification was mailed to the applicant's address that was on file at that time.  

6.  It appears that the applicant did not understand that his being in the IRR meant that he still had an active status in the USAR and that he completely forgot that, when he was appointed as a WO, he was appointed for an indefinite term.  

7.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge from the USAR was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the applicant’s discharge was proper and equitable and there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEV  __  __RDG  _  __RCH__  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.




____James E. Vick         __
          CHAIRPERSON




INDEX

CASE ID
AR20070003575
SUFFIX

RECON

DATE BOARDED
19 SEPTEMBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
131.1000.0000
2.
131.0500.0000
3.

4.

5.

6.