RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 February 2008
      DOCKET NUMBER:  AR20070006142


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. Susan A. Powers               |     |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 Chief Warrant Officer Three (CW3)
promotion date be changed to 1 March 2006.

2.  The applicant states that he was denied promotion based on a faulty
application of regulations that have since been corrected.  He served one
year
on active duty with his Reserve unit, from June 2002 to June 2003.  After
he redeployed, he worked his civilian job for 3 months, then he was
activated as an individual for 3 years.  He completed that assignment in
September 2006.

3.  The applicant states that while on active duty he was selected for
promotion by the Active Duty List (ADL) CW3 promotion board with a
promotion date of       1 March 2006.  However, because he could not accept
the 2-year active duty service obligation (ADSO) for the Government’s own
reasons, the Army did not promote him.  Meanwhile, he could not be
considered by the U. S. Army Reserve (USAR) CW3 promotion board because he
was on active duty.  This month (his Board application is dated 18 April
2007) his packet goes before the USAR CW3 promotion board in an “above
zone” status, which makes it appear that he was passed over for promotion.
Now, everyone in his Warrant Officer Basic Course, including other
Reservists, has already made CW3.

4.  The applicant states that he could not accept the 2-year ADSO in March
2006 because the Army regulation requires a Reservist to serve the final 6
years of his 20 qualifying years as a Reservist in order to be eligible for
a Reserve retirement. If he served the 2-year ADSO, he would have gone over
that limit and lost his retirement.  In addition, the Labor Code requires
an employer to keep a Reservist’s job open for a maximum of 5 years.  He
had already served 4 years, and serving another 2 years would mean that he
was gone (from his civilian job) for 6 years.  That would have cost him his
civilian job and destroyed his civilian retirement.  These glitches have
now been fixed and now Reservists caught in this situation are not punished
in this manner for serving on active duty.  However he was harmed by this
situation.

5.  The applicant provides Military Personnel (MILPER) message number
 06-039, Subject:  Promotion Numbers for March 2006; the results of the
Fiscal Year 2005 (FY05) CW3 selection board; and his Officer Record Brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 29 November 1951.  After having had prior
enlisted service in the Regular Army, USAR, and Army National Guard, he was
appointed as a warrant officer in the USAR on 30 April 1999.  He was
promoted to CW2 on 30 April 2001.

2.  The applicant entered extended active duty on 15 September 2003 for 3
years as an obligated volunteer officer.  His active duty orders state in
part that he was appointed in the Reserve grade of CW2 and “placed on the
active duty list in the grade of WO2 in accordance with (IAW) AR 135-101.
DOR TBD after EAD IAW AR 624-100.  Early….”

3.  The applicant was considered and selected for promotion to CW3 by the
ADL FY05 CW3 promotion board with a sequence number of 238.  His sequence
number came up for promotion effective 1 March 2006.  He was not promoted
to CW3 because he did not have 2 years of active duty remaining to complete
the required ADSO.

4.  The applicant was released from active duty in September 2006 upon the
expiration of his active duty commitment.

5.  The applicant was considered and selected for promotion by the 2007
Reserve Components CW3 selection board, which was approved on 13 July 2007.
 He was promoted to CW3 with a date of rank (DOR) of 30 April 2007 with an
effective date of 13 July 2007.

6.  In the processing of this case, an advisory opinion was obtained from
the Special Actions Branch, Promotions, U. S. Army Human Resources Command
– St. Louis (USAHRC – STL).  The advisory opinion noted that since the
applicant was not promoted prior to his release from active duty he was not
eligible for a DOR of 6 March 2006.  He was selected for promotion by the
2007 Reserve Components CW3 selection board and promoted on orders dated 31
July 2007, with a DOR of 30 April 2007 and an effective date of 13 July
2007.  Paragraph   4-17 of Army Regulation 135-155 states that a warrant
officer’s DOR will be the date he meets the mandatory service requirements
and promotion eligibility requirements.  The applicant met the 6 years time
in grade requirement on        30 April 2007; therefore, 30 April 2007 is
his correct DOR.  Paragraph 4-15 of the regulation states that the
effective date will be the later of the date of the promotion memorandum or
the day following the date he completes the TIG requirement.  The promotion
memorandum date of 31 July 2007 is the later of the two dates and is the
applicant’s correct effective date of promotion.

7.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the time frame given.

8.  Information obtained on 30 January 2008 from the Special Actions
Branch, Promotions, USAHRC – STL indicated that if the applicant had
remained in the Reserve promotion system, he would have been considered by
the 2006 Reserve Components CW3 selection board, which was approved on 14
June 2006 and released on 27 July 2006.  If he had been selected by the
2006 board, he would have been promoted effective 30 April 2007 with a DOR
of 30 April 2007.

9.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies
governing promotion of Army commissioned and warrant officers on the ADL.
Paragraph  1-18b states that a warrant officer who accepts promotion to the
grade of CW3, CW4, or CW5 will incur a (2-year) ADSO.

10.  The National Defense Authorization Act of Fiscal Year 2005 (beginning
       1 October 2005) terminated the requirement for certain officers to
complete          6 years in a Reserve Component for eligibility for
nonregular retired pay.  The change was retroactive to 26 April 2005.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence to show that the applicant was denied promotion
based on “a faulty application of regulations.”

2.  The applicant stated that he could not accept the 2-year ADSO in March
2006 because the Army regulation requires a Reservist to serve the final 6
years of his 20 qualifying years as a Reservist in order to be eligible for
a Reserve retirement. If he served the 2-year ADSO, he would have gone over
that limit and lost his retirement.

3.  The applicant’s contention that he was required to serve the last 6
years of his 20 qualifying years in a Reserve Component in order to be
eligible for a Reserve retirement is noted.  However, he could have
retained his Reserve Component status had he accepted the promotion and
applied for a short-term extension of his active duty commitment (instead
of accepting a Regular Army appointment, which will soon be required of all
officers on the ADL).

4.  However, it is understood that the applicant still had personal reasons
(losing his civilian job) that would have kept him from applying for the
short-term extension and accepting the promotion.

5.  In any case, a promotion is not meant to be a reward for good
performance of duty carried out in the past.  It is a recognition of
potential for future performance
in a higher grade.  When an officer is selected for promotion by an ADL
promotion board, it is reasonable for the Army to expect that officer to
commit him/herself to a certain period of time on active duty.  In this
case that period of time was 2 years, and the applicant did not have that
retainability.

6.  Nevertheless, the applicant’s contention that he was harmed by this
situation has some validity.

7.  The applicant proved himself to be highly competitive for promotion by
being selected for promotion to CW3 in competition with ADL warrant
officers who had always been on active duty.  He was then selected for
promotion to CW3 by the first Reserve Component CW3 promotion board for
which he was eligible for consideration after he came off active duty in
September 2006.  It is reasonable to presume that had he not been placed on
the ADL when he came on active duty in September 2003, had he instead
remained in the Reserve promotion system, that he would have been selected
for promotion by the Reserve Component CW3 board that convened in 2006.

8.  Following the above presumption, the applicant’s orders would have been
issued in sufficient time for him to be promoted to CW3 with a DOR of 30
April 2007 and an effective date of 30 April 2007, the date he met the
mandatory service requirements and promotion eligibility requirements.

9.  Based upon the facts and presumptions noted in paragraphs 7 and 8,
above, it would equitable to correct the applicant’s 2003 active duty
orders to show he was not placed on the ADL but remained in the Reserve
promotion system instead, and that he was considered and selected for
promotion by the 2006 Reserve Component CW3 promotion board, and that he
was promoted to CW3 with a DOR and an effective date of 30 April 2007.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__kan___  __jam___  __sap___  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.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

     a.  amending his 14 January 2003 active duty orders to delete the
words, ”…and placed on the active duty list in the grade of WO2 in
accordance with (IAW) AR 135-101.  DOR TBD after EAD IAW AR 624-100.
Early…” and substituting instead the words, “…and will remain in the
Reserve promotion system.  Early…;”

     b.  showing he was considered and selected for promotion by the 2006
Reserve Component CW3 promotion board; and

     c.  showing that he was promoted to CW3 with a DOR and an effective
date of 30 April 2007.

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
changing his CW3 promotion date to 1 March 2006.




                                  __Kathleen A. Newman__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006142                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20080212                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |131.04                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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