RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070015787 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea M. Nuppenau

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 effective date of promotion to chief warrant officer three (CW3) from 9 August 2007 to 19 May 2006, and in effect, restoration of back pay based on the corrected effective date of promotion. 

2.  The applicant states that he was eligible for consideration for promotion by the Fiscal Year 2006 (FY06) Reserve Component Selection Board (RCSB).  However, his promotion packet was removed from the FY06 RCSB due to his earlier activation on Contingency Operations-Extended Active Duty (CO-EAD) Orders from 2004 to 2006.  He was considered and selected for promotion by the FY07 RCSB with a date of rank (DOR) as 19 May 2006 and an effective date of promotion as 9 August 2007.  He believes the CO-EAD orders led to his delayed promotion selection.  

3.  The applicant provided copies of the following documents in support of his application:

	a.  Army Human Resources Command (HRC)-Alexandria, Virginia, Orders A-09-409086, dated 7 September 2004, Contingency Operations Extended Active Duty orders;

	b.  HRC- Alexandria, Virginia, Orders A-09-409086A01, dated 1 August 2006, Amendment of Contingency Operations Extended Active Duty orders;

	c.  DD Form 214 Worksheet, dated 12 September 2006;

	d.  HRC-St. Louis, Missouri, Orders B-08-705735, Promotion to CW3 Orders; and  

	e.  exchange of electronic mail (email) between the applicant and his assignment officer at HRC-Alexandria.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant was appointed in the Georgia Army National Guard (GAARNG) as a warrant officer one (WO1) on 3 April 1998 and was awarded military occupational specialty (MOS) 915A (Automotive Maintenance Warrant Officer).  He was promoted to chief warrant officer two (CW2) on 19 May 2000 and was separated from the Army National Guard and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 1 August 2001.  
2.  On 28 August 2001, he was voluntarily transferred from the USAR Control Group (Reinforcement) to the Forces Command (FORSCOM) Augmentation Unit, Fort McPherson, Georgia, and was subsequently ordered to active duty in support of Operation Noble Eagle, effective 8 December 2001.  He was released from active duty on 3 June 2004 and transferred back to the USAR Control Group (Reinforcement) on 12 September 2004.  

3.  On 7 September 2004, HRC-Alexandria, Virginia, published Orders 
A-09-409086, ordering the applicant to active duty for a period of 2 years under the CO-EAD program as a Support Maintenance Technician, assigned to HRC-Alexandria, Virginia, and attached to Headquarters, FORSCOM, Fort McPherson, Georgia.  The Orders contained additional instructions that state “Service member remains on the Reserve Active Status List (RASL).”  

4.  On 1 August 2006, HRC-Alexandria, Virginia, published Orders                     A-09-409086A01, amending Orders A-09-409086, dated 7 September 2004, to read the additional instruction “effective 28 October 2004, all Reserve Component warrant officers ordered to active duty for operational support will remain in the Reserve component promotion system.”

5.  On 15 August 2006, HRC-Alexandria, Virginia, published Orders                   A-08-621204, ordering the applicant to active duty for a period of 1 year under Contingency Operations-Temporary Tour of Active Duty (COTTAD) program in support of Operation Noble Eagle.  He was assigned to Headquarters, FORSCOM, Fort McPherson, Georgia. 

6.  On 31 July 2007, by memorandum, HRC-St. Louis, Missouri, informed the applicant that he was considered and selected for promotion by the FY07 RCSB that convened on 18 April 2007 and recessed on or about 27 April 2007.  The memorandum further stated that to be promoted, the applicant must have remained in an active status, been medically qualified for retention, met the Army body weight standards, and met the promotion eligibility criteria of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  

7.  On 9 August 2007, HRC-St. Louis, Missouri, published Orders B-08-705735, announcing the applicant’s promotion to CW3 effective 9 August 2007 and with a DOR of 19 May 2006.  

8.  In an advisory opinion obtained in the processing of this case on 27 December 2007, the Chief, Special Actions Branch, Reserve Promotions, HRC-St Louis, Missouri, stated that:
	a.  the applicant was selected for promotion by the 2007 Department of the Army Reserve Components CW3 Selection Board and promoted on orders dated 9 August 2007.  His effective date of promotion of 9 August 2007, is in accordance with paragraph 4-15b of Army Regulation 135-155.  The regulation states that a warrant officer’s effective date is the later of the date of the promotion memorandum or the day following the date the officer completes the time in grade (TIG) requirements.  Prior to issuance of the promotion orders, the applicant did not meet the promotion requirements of being in a valid position, nor did he possess an updated security clearance which was a promotion requirement at that time.  Based on this information, 9 August 2007 is the earliest effective date of promotion the applicant is eligible for at this time; and

	b.  a review of the applicant’s file revealed he was in a zone for promotion consideration by the 2006 Selection Board.  His file was inadvertently omitted from the board.  Therefore, he is eligible for promotion consideration by a Department of the Army Promotion Advisory Board under the 2006 criteria.  It is recommended that the applicant be granted advisory board consideration and if selected and meets all promotion requirements that were in effect at that time, that his date of rank and effective date of promotion be adjusted accordingly.

9.  The applicant was provided with a copy of this advisory opinion on 29 December 2007.  He responded with a rebuttal on 13 February 2008 as follows: 

a.  he appreciates the opportunity to submit a rebuttal and feels his promotion to CW3 should be effective 19 May 2006 and that he should be compensated back pay accordingly.  He believes that he would have been promoted with his peers in 2006 had it not been for his circumstances; 

b.  he maintained an authorized and valid position while working at Headquarters, FORSCOM, and maintained a valid Top Secret clearance; 

c.  after he was placed on CO-EAD orders, he became eligible for promotion to CW3 and submitted a promotion packet to HRC-St. Louis for the 2006 Board.  However, the language of the additional instructions in the CO-EAD caused the USAR to carry him as an active duty Soldier and the Active Duty system to carry him as a USAR Soldier.  This “language” became an Army-wide issue that led to amendment of his orders two years later; and

d.  had the CO-EAD orders been published correctly with the proper language, his promotion packet would have been considered by the 2006 RCSB and he would have been promoted on 19 August 2006. 
10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve warrant officers.  Paragraph 4-15b of this regulation states that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued.  The promotion memorandum cannot be issued before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR/IMA officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.  For warrant officers, the effective date is the later of the date of the promotion memorandum or the day following the date the officer completes the TIG requirements.  

11.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other than a Presidential Selected Reserve Call-up, Partial, or Full Mobilization) prescribes policies, responsibilities, and procedures for ordering individual Soldiers of the Army National Guard (ARNG) and the USAR to active duty (AD) for other than a Presidential selected Reserve call–up, partial or full mobilization.  It states, in pertinent part, that TTAD in support of contingency operations is voluntary only. TTAD may be used to order Reserve of the Army Soldiers to AD for a contingency operation of the Active Army when the mission requires specialized experience or knowledge which they possess and which is unavailable in the Active Army.  ARNG and USAR soldiers ordered to AD under the TTAD Program remain assigned to their Reserve component and under ARNGUS or USAR strength accountability and remain eligible for promotions under the Reserve components promotion system. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his effective date of promotion to CW3 from 9 August 2007 to 19 May 2006 and, in effect, restoration of back pay based on the corrected effective date of promotion. 

2.  Evidence of record shows that the applicant was selected by the FY07 RCSB and was subsequently promoted to CW3 effective 9 August 2007.  The effective date of a warrant officer’s promotion is the later of the date of the promotion memorandum or the day following the date he/she completes the TIG requirements.  Prior to issuance of the promotion orders, the applicant did not meet the promotion requirements of being in a valid position, nor did he possess an updated security clearance which was a promotion requirement at that time.  Based on this information, 9 August 2007 is the earliest effective date of promotion the applicant is eligible for at this time.

3.  Evidence of record further shows that the applicant was eligible for promotion consideration by the FY06 RCSB, but his file was not forwarded to that Board due to the unclear additional instructions and guidance provided in his orders to CO-EAD.  The applicant is therefore entitled to have his records considered by a DA Promotion Advisory Board under the 2006 criteria. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___rtd__  ___gjp__  __rmn___  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 to show that:

	a.  the applicant's records be submitted to a duly constituted DA Promotion Advisory Board for promotion consideration to CW3 under the 2006 year criteria;

	b.  if selected, his records be further corrected by showing he was promoted to CW3 on his date of eligibility, as determined by appropriate Departmental officials, using the 2006 year criteria, provided he was otherwise qualified and met all other prerequisites for promotion; 

	c.  if selected under the 2006 criteria and given an earlier effective date of promotion, that his pay records be appropriately adjusted; and

	d.  if he is not selected for promotion to CW3, he be so notified.


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 correction of his effective date of promotion to CW3 to 19 May 2006 and restoration of back pay based on the corrected effective date of promotion.



							Richard T. Dunbar
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.