IN THE CASE OF:	  

	BOARD DATE:	  28 AUGUST 2008

	DOCKET NUMBER:  AR20080003745 


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 consideration for promotion to chief warrant officer four (CW4).

2.  The applicant states that through error his military records were not submitted to the 18 April 2007 mandatory promotion selection board for consideration. 

3.  The applicant provides copies of his promotion orders for chief warrant officer three (CW3), reassignment orders, election of options, and promotion board message. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a CW3 in the Individual Ready Reserve (IRR). 

2.  The applicant was promoted to CW3 with an effective date and date of rank of 1 November 2002. 

3.  In September 2006 and again on 2 November 2006, a Military Service Obligation (MSO) letter was sent to the applicant informing him of his options and requesting him to make an election.



4.  On 27 December 2006, the applicant was released from the United States Army Reserve Control Group (Reinforcement) and assigned to the Standby Reserve (Inactive List).  He was simultaneously informed that he would be transferred to the Retired Reserve on 27 December 2007 unless he requested to remain in the IRR. 

5.  On 10 January 2007, a Military Personnel Message Number 07-008, 2007 Zones of Consideration for Promotion to Reserve of the Army, Chief Warrant Officer Three and Chief Warrant Officer Four was issued.  This message did not include the applicant among those being considered for promotion to CW4.

6.  On 10 January 2007, the applicant completed and signed the MSO letter requesting to remain a member of the IRR.

7.  On 22 January 2007, the applicant was transferred back to the IRR.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions, Department of the Army Promotions, United States Army Human Resources Command, St. Louis, Missouri.  It stated that the applicant’s date of rank for CW3 is 1 November 2002 and his promotion eligibility date for CW4 is 1 November 2008.  This put him in the zone of consideration for the 2007 CW4 Department of the Army Reserve Components Selection Board (DA RCSB); however, he had a break in service.  The applicant was placed in the Standby Reserve (Inactive List) effective 27 December 2006 because he did not respond to the MSO letter sent to him.  The first letter was sent in September 2006 and a second letter was sent in November 2006.  If this order were revoked it might have made a difference but no revocation is available.  On 10 January 2007, the applicant signed and submitted the MSO letter.  Findings show that the applicant called when he realized that he had been transferred to the Standby Reserve and said that he was in the National Guard.  If there is something to substantiate this claim, he should provide it.  It also might have made a difference.  On 22 January 2007, the applicant was transferred back to the IRR.  In accordance with Army Regulation 135-155, paragraph 2-6, if there is a break in service, the officer will not be considered for promotion for at least 1 year after the date of return to active status.  The applicant was not eligible for consideration by the 2007 CW4 DA RCSB because, “according to our records, he had a break in service.”

9.  On 15 May 2008, the applicant submitted a rebuttal statement to the advisory opinion.  It stated that the applicant was erroneously placed in the Standby Reserves because he had not responded within the required time limit to an 
MSO letter.  It claims that he was unable to respond within the required time limit because he was outside of the continental United States from 30 October 2006 through 18 April 2007.  During this time he was working for the United States State Department International Narcotics and Law Enforcement Bureau at the United States Embassy in Port-au-Prince, Haiti.  It further claims that he could not respond to the first MSO letter because it was sent to the wrong address.  The second letter had to be forwarded to him in Haiti.  Because mail delivery in Haiti is brought in every 2 weeks and may take up to a month to find the addressee, he did not finally receive his MSO letter until the end of December 2006.  It states that the applicant responded by both telephone and email and signed the MSO and returned it immediately, but it was too late, and he was involuntarily placed in the Standby Reserve.  At no time was the applicant ever in the National Guard.  It claims that the 13 days he spent in the Standby Reserve was due to an unavoidable timing issue and was not through any fault of his own.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was in the zone of consideration for promotion to CW4 and that, had he not been transferred to the Standby Reserve, he would have been eligible for consideration by the 2007 CW4 CRSB. 

2.  The evidence also shows that the applicant did not respond to the MSO letters until 10 January 2007, after he had been placed in the Standby Reserve.  He was subsequently transferred back to the IRR on 22 January 2007.  This constituted a break in service.

3.  The first MSO letter was sent to the applicant in September 2006 which the applicant claims he did not receive because it was incorrectly addressed.  However, he provides no evidence of this error.  At that time, he was supposedly still in the United States.

4.  The second MSO letter was sent to the applicant on 2 November 2006. Supposedly, this letter had to be forwarded to him in Haiti, which caused about a 2 month delay in his receiving it.  

5.  The applicant claims that he was not at fault for the delay in receiving the MSO letter and therefore, implies that he should now receive consideration for promotion as if he never had a break in service.


6.  It is reasonable to presume that the applicant knew he was in the zone of consideration for promotion and that he should keep the Army informed of his current whereabouts.  Because he did not do this, he did not receive the MSO letter.  Therefore, the fault is the applicant’s.

7.  In view of the above, the applicant’s request should be denied.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080003745



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