RECORD OF PROCEEDINGS


	IN THE CASE OF:    


	BOARD DATE:	  13 September 2007
	DOCKET NUMBER:  AR20070007440 


	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 L. Engle

Analyst


The following members, a quorum, were present:


Mr. Thomas A. Pagan

Chairperson

Mr. Eric N. Andersen

Member

Mr. Paul M. Smith

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 correction of his military records to show that he was promoted to chief warrant officer two (CW2) effective 26 July 2007.  He further requests, in effect, that if his effective date for promotion cannot be granted, he would like his date of rank to CW2 to be 26 July 2007.

2.  The applicant states, in effect, that he graduated from the Warrant Officer Candidate School (WOCS) on 26 July 2005 and was appointed as a warrant officer one (WO1).  He would have been promoted to CW2 on 26 July 2007 had he remained in the United States Army Reserve.  He entered active duty on 
17 February 2007.  Promotion to CW2 on active duty requires 18 months as a WO1 on active duty.  This means he will have to serve in the rank of WO1 for a total of about 44 months.  The applicant further states that he feels this is unjust and will separate him from his peer group.

3.  The applicant provides copies of his Oath of Office (DA Form 71), Reserve Warrant Officer Appointment Certificate (DA Form 1290), and Graduation Diploma from the WOCS, Class 05-16.

CONSIDERATION OF EVIDENCE:

1.  On 7 June 1996, the applicant enlisted in the United States Army Reserve (USAR) for 8 years beginning in the rank of private, pay grade E2.  On 17 July 1996, he enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 91B1O (Medical Specialist).

2.  On 16 July 2000, the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).  He had attained the rank of specialist, pay grade E4 and had completed 4 years of creditable active duty service.

3.  On 29 March 2001, the applicant was voluntarily reassigned to the 1207th United States Army Hospital at Fort Benning, Georgia.

4.  On 18 November 2002, the applicant was promoted to the rank of sergeant, pay grade E5, in the USAR.

5.  On 10 November 2004, the applicant was reassigned within his Troop Program Unit for the purpose of mobilization.  His rank at this time was staff sergeant, pay grade E6.
6.  On 25 July 2005, the applicant was honorably discharged from the USAR as a staff sergeant, pay grade E6.  On 26 July 2005, he was appointed as a Reserve Warrant Officer of the Army under Sections 591 and 597, United States Code (USC) Title 10.  This appointment was for an indefinite term in the USAR.   He signed his Oath of Office on 26 July 2005.

7.  Records show that the applicant voluntarily entered active duty as a Reserve WO1 on 17 February 2007, with a date of rank and effective date of 17 February 2007. 

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, United States Army Human Resources Command, 1 Reserve Way, St. Louis, Missouri.  The opinion stated that the applicant, as a reservist, had a promotion eligibility date to CW2 of 25 July 2007.  However, now that he is on active duty, the Office of Promotions, Reserve Components is no longer his promotion authority.  

9.  An advisory opinion was also obtained from the Deputy Chief, Promotions Branch, United States Army Human Resources Command, 200 Stovall Street, Alexandria, Virginia.  The opinion stated that once the applicant entered active duty, his eligibility came under the provisions of USC Title 10 and Army Regulation 600-8-29.  USC Title 10, section 573(a)(2) states that WO1 serving on active duty shall be promoted to CW2 in accordance with regulations prescribed by the Secretary concerned.  Such regulations shall require that an officer have served not less than 18 months on active duty in the grade of WO1 before being promoted to the grade of CW2.  Army Regulation 600-8-29, paragraph 3-3a which is prescribed by the Secretary of the Army, reads in part, that the earlier of the following dates will be the promotion eligibility date to CW2. (1)  The second anniversary of total active duty service provided the officer has served a minimum of 18 months on active duty as a WO1. (2)  The second anniversary of total active duty in the current or higher grade provided that the officer has served a minimum of 18 months of active duty service as a WO1.  Since the applicant has not met the active duty time in grade, the opinion recommended that his request be denied.

10.  On 14 August 2007, the applicant acknowledged receipt of the advisory opinion and elected not to rebut it.  He did ask for consideration in adjusting his date of rank.



DISCUSSION AND CONCLUSIONS:

1.  The record of evidence clearly shows that the applicant was appointed a USAR WO1 on 26 July 2005 and had a promotion eligibility date of 26 July 2007 as a Reservist.  However, he entered active duty prior to his being promoted to CW2 as a Reservist.  Therefore, his promotion eligibility is now governed by the law and regulation applicable to active duty Soldiers.  His promotion eligibility date for promotion to CW2 is 17 August 2008, when he completes 18 months of active duty as a WO1.

2.  There are no regulatory provisions for adjusting the applicant’s date of rank. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TAP __  __ENA__  __PMS__  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.




                                                        __   Thomas A. Pagan____
                                                                CHAIRPERSON


INDEX

CASE ID
AR20070007440
SUFFIX

RECON
 
DATE BOARDED
20070913
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0400
2.

3.

4.

5.

6.