IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20070018990 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, promotion to chief warrant officer three (CW3).   

2.  The applicant states that after being discharged from the Regular Army on 7 February 2000, he was placed into the Individual Ready Reserve (IRR).  For the next two years he held a civilian job and did not perform any unit training (drills).  He began drilling again as an Individual Mobilization Augmentee (IMA) at Fort Gordon, Georgia, and subsequently completed the paperwork to be transferred back into the IRR.  He is currently on active duty in support of contingency operations and is attached to an Army National Guard unit.  He also adds that he was told by a staff officer of the Human Resources Command (HRC), St. Louis, Missouri, that he did not fill out the necessary paperwork that HRC sent him regarding acceptance or declination of IRR status.  However, he states, he does not remember receiving any correspondence from HRC in that regard. 

3.  The applicant provided the following additional documentary evidence in support of his application: 

	a.  Self-authored letter, dated 14 December 2007.

	b.  Electronic mail (email) correspondence with an IMA Commander. 

4.  The applicant stated on his electronic application that he attached copies of DA Form 1380 and DA Form 4651-R; however, these forms were not present with the applicant’s request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service in the Regular Army, the applicant’s records show that he applied for appointment as an aviation warrant officer of the U.S. Army Reserve on 13 September 1990.  

3.  On 1 November 1990, the applicant was appointed as an Aviation Reserve warrant officer of the Army in the rank of warrant officer one (WO1) and executed an oath of office on the same day.  He subsequently entered active duty and was awarded military occupational specialty (MOS) 153D0 (UH-60 Pilot).  He was promoted to chief warrant officer two (CW2) on 1 November 1992.   

4.  On 7 February 2000, the applicant was honorably released from active duty and was transferred to the U.S. Army Reserve (USAR) Control Group (IRR).  An individual assigned to the IRR receives no pay or benefits and is not obligated to drill, conduct annual training, or participate in any military activities (except for periodic Muster activities) until activated by Presidential Reserve Call-up Authority.

5.  On 27 December 2006, HRC-St. Louis, MO, published Orders C-12-643203, releasing the applicant from the IRR and assigning him to the Standby Reserve Inactive List, effective 27 December 2006, for failure to make Mandatory Service Obligation (MSO) Election.


6.  On 12 June 2007, HRC-St. Louis, MO, published Orders C-06-718605, releasing the applicant from the Standby Reserve Inactive List and assigning him to the IRR effective 12 June 2007.

7.  On 10 October 2007, the applicant was ordered to active duty as an individual fill to a unit, in support of Operation Iraqi Freedom, for a period of 400 days and was subsequently assigned to the Company C, 1st Battalion, 126th Aviation.

8.  In his self authored statement, dated 14 December 2007, the applicant states that after his release from active duty in February 2000, he signed up for the IRR for a period of 6 years.  His last security clearance was completed in 1989 and that at the time he was on active duty, he assumed the unit security manager would take action to renew his clearance.  Furthermore, when he got out of the Army, he worked in a civilian job and did not take a military physical. In 2006, he began drilling with an IMA unit out of Fort Gordon, Georgia.  At the time, he was not aware that he had been discharged from the IRR.  During the entire time, he does not recall receiving any paperwork asking him if he wanted to stay in the IRR or correspondence related to his mandatory service obligation (MSO). If he had received any IRR or MOS letters from HRC-St. Louis, MO, he would have certainly filled them out.  He also states that he did not receive any documentation pertaining to promotion consideration.  He was recently called to active duty in support of Operation Iraqi Freedom and would like to get promoted while there.  He also plans to sign up for the USAR and remain on drill status for two years after he returns from Iraq.  He concludes that he finished his flight physical at Fort Rucker, Alabama, and has also submitted the proper paperwork regarding his security clearance and is awaiting his clearance to be approved.

9.  An advisory opinion was obtained on 18 April 2008 in the processing of this case.  The Chief of Special Actions Branch, Department of the Army (DA) Promotion, Human Resources Command, St. Louis, Missouri, stated that the applicant was considered and selected by the 2002 DA Reserve Components Selection Board (RCSB). The database reflects that the applicant had an outdated physical and an outdated security clearance and could not be promoted to CW3 based on policy in effect at the time.  The database also reflected that the applicant had an outdated address and never responded to two MSO letters. As a result, on 27 December 2007, the applicant was transferred to the Standby Reserve Inactive List.  Based on his inactive status, he lost selection to CW3.  He was assigned to the USAR Control Group (Reinforcement).  He must be on the Reserve Active Status List for one year before being considered for promotion.  Therefore, he will be eligible for consideration for promotion after 12 June 2008.  

10.  The applicant was furnished a copy of this advisory opinion on 23 May 2008, but did not respond. 
11.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and the commissioned and warrant officers of the U.S. Army Reserve.  Table 2-3 of this regulation outlines the service requirements for promotion and indicates that the maximum years of service required in the lower grade for promotion to CW3 is six years.

12.  Army Regulation 135-155 also mandates other qualifications for promotion, including:

	a.  Status - Soldier must have continuously performed service on either the Reserve active-status list or the active duty list (or a combination of both lists) during the one-year period ending on the convening date of the promotion board.

	b.  Physical Examination – Soldier must have a physical examination on record within five years of the date of promotion.

	c.  Annual Physical Fitness Test (APFT) – Soldier must pass the APFT within 12 months of the date of promotion.  This is waived only if a medical profile precludes taking a regular or alternate APFT, and Soldier's last APFT was not expired or failed at the time the profile was in effect.

	d.  Height and Weight Standard – Soldier must meet weight standards as prescribed by AR 600-9 within 12 months of the date of promotion.

	e.  Security Clearance – Soldier must possess, as a minimum, Secret clearance.

	f.  Flag – Soldier cannot be promoted with any flagged entries in the database.

13.  Army Regulation 135-155 also specifies than an officer is promoted after selection if all qualifications for promotions are met.  When an officer does not meet the qualification for promotion, the promotion effective date and the date of rank may be advanced to the date qualifications are met.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time of his selection for promotion to CW3, the applicant had an outdated physical and an outdated security clearance. Therefore, he could not be promoted to CW3 based on policy in effect at the time.  Furthermore, he also had an outdated address which presumably led to his failure to respond to two MSO letters.  As a result, on 27 December 2007, the applicant was transferred to the Standby Reserve Inactive List.  Based on his inactive status, he lost selection to CW3.  

2.  The evidence of record further shows that the applicant was assigned to the USAR Control Group (Reinforcement) on 12 June 2007.  He must be on the Reserve Active Status List for one year before being considered for promotion.  Therefore, he will be eligible for consideration for promotion after 12 June 2008.  

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the circumstances in this case, he is therefore not entitled to promotion to CW3. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
 _   _______   ______________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070018990



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ABCMR Record of Proceedings (cont)                                         AR20070018990



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