IN THE CASE OF:	   

		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080003854 


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 that his non-selection by two Department of the Army Mandatory Promotion Boards be annulled or a waiver be granted so that he may be removed from forced retirement and be allowed to return to his unit in the Army National Guard (ARNG).

2.  The applicant states, in effect, that he was unjustly forced into retirement and passed over for promotion to CW4 while temporarily in the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR).  He was not notified of errors and omissions in his personnel file, nor was he given the opportunity to correct them until after the promotion board had non-selected him.  The applicant states that the reason for his non-selection was lack of required military education.

3.  The applicant states he had completed the Senior Warrant Officer Course which was the requirement for promotion at that time.  He continues that there is confusion as to whether or not he should have ever been before the promotion board at that time.  He states he was previously promoted to CW4 while a member of the ARNG.

4.  The applicant provides a Certificate of Completion for Reserve Component Aviation Senior Warrant Officer Training, dated 17 January 1996; a DA Form 
67-8 (U.S. Army Officer Evaluation Report (OER)) with the period ending 9 April 1998; a memorandum from the Nevada Army National Guard (NVARNG) 

Recruiting and Retention Command, dated 30 January 2008; a Letter of Recommendation from the NVARNG, dated 31 January 2008; and an Armed Forces of the United States Identification Card, with the expiration date of 
13 March 2006.

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.  The applicant had prior service in the U.S. Naval Reserve (USNR) and the ARNG.  On 25 November 1980, he was appointed as a Second Lieutenant (2LT)/O-1 in the California Army National Guard (CAARNG).  On 29 December 1986, he was promoted to Captain (CPT)/O-3.

3.  CAARNG Orders 126-23, dated 20 June 1980, show that the applicant was honorably separated from the CAARNG on 26 April 1989 at the rank of CPT.    

4.  National Guard Bureau (NGB) Special Orders Number 156 AR, dated
15 August 1989, show that the applicant's Federal Recognition was withdrawn for the purpose of reappointment as a Chief Warrant Officer Two (CW2)/W-2 in the CAARNG effective 26 April 1989.  On 27 March 1996, the applicant was promoted to CW3.

5.  CAARNG Orders 77-168, dated 17 March 2000, show that the applicant was honorably separated from the CAARNG on 14 March 1999 and transferred to the USAR Control Group (Reinforcement) in the rank of CW3.  There are no promotion orders in the applicant's records that show he was promoted to the rank of CW4 prior to his transfer to the USAR.

6.  The U.S. Army Human Recourses Command-St. Louis (USAHRC-STL) Soldier Management System (SMS), Transaction History, indicates in entries dated 21 February 2001 and 17 April 2001 that the applicant updated his address, phone number and/or email.
7.  ARPC Form 3725-E (Army Reserve Status and Address Verification) dated 
20 August 2001, shows the applicant's current home address.  The document further indicates that he changed his email address.  He further indicated interest in assignment to an individual mobilization augmentee (IMA) position and training as an individual ready reservist.  The document is verified by his signature on the same date.

8.  The applicant's records were considered by the Fiscal Year (FY) 2002 Department of the Army Reserve Component Selection Board (DA RCSB) for promotion to the grade of CW4.  

9.  By letter dated 6 August 2002, the applicant was notified by the U.S. Army Total Army Personnel Command - St. Louis that he was not recommended for promotion. 

10.  The applicant's records were considered by the FY 2003 DA RCSB for promotion to the grade of CW4.  

11.  By letter dated 26 August 2003, the applicant was notified by the U.S. Army Total Army Personnel Command – St. Louis that he was not selected a second time for promotion.  The memorandum further stated, "As a result of this second nonselection, you must be discharged in accordance with Title 10, U.S. Code 14513 or Army Regulation 140-10, your established removal date is not later than 10 November 2003, unless you are eligible for and request transfer to the Retired Reserve."  This letter did not state the reason for the applicant's second nonselection.

12.  On 10 November 2003, the applicant was released from the USAR Control Group (Reinforcement) and was assigned to the Retired Reserve by reason of "NON-SELECTION FOR PROMOTION."

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, USAHRC-STL.  The advisory opinion recommended denial.  It stated, "A review of the applicant's records revealed that he was considered, but non-selected by the 2002 and 2003 Chief Warrant Officer Four Department of the Army Reserve Components Selection Board as a member of the Individual Ready Reserve.  The reason for the non-selection is unknown because board deliberations are not a matter of record.  However, in his case, his Certificate for Senior Warrant Officer Training and his officer 
evaluation report ending April 9, 1998 were seen by both selection boards.  Zone 



of consideration messages are electronically transmitted world wide announcing 
selection boards; applicant was mailed notification memos and given the opportunity to provide documentation to the selection board."

14.  In his rebuttal to the advisory opinion, the applicant stated in part that he was a career guardsman with a long history, actively volunteering for extra duties as well as missions in support of his unit, flight facility, state, and nation.  His spouse was diagnosed with an aggressive form of breast cancer.  With support from his guard unit, he was to temporarily transfer to the IRR so that he would not have to worry about drill or annual training and would return to his unit when his spouse's health improved.  He did not expect to be placed before a promotion board.  It was not until his spouse's recovery and his attempt to return to the ARNG did he find out what happened.

15.  The applicant further states that the advisory opinion stated that the promotion board zone of consideration messages are transmitted electronically worldwide announcing selection boards and memos were mailed to him.  At that time he did not have an active account, so he could not have received any messages sent in that manner.  Though it is certainly not the Army's fault, at that time he had moved to be closer to the hospital where his spouse was undergoing her care.  Notifying the IRR of his move and change of address was not a priority during this time.  Finally, promotion board deliberations are not a matter of record so it is unknown what the board based its decision on, though they did have one OER and one school diploma.  However, the board did not have available to review the various positions he held in his unit, his civilian employment as an instructor pilot for the Sacramento Metro Fire Department, and that each year he coordinated and conducted training for the National Guard pilots in wild land fire fighting.  He was the National Guard pilot that teamed with the U.S. Forest Service to develop the techniques and procedures to integrate UH-60 Blackhawks into a fire fighting role.  He was presented the Medal of Valor by the Governor, and he was responsible for various other projects that have saved many lives during earthquakes, floods, or fires for the last 20 years.

16.  On 7 July 2008, the Special Actions Branch, USAHRC-STL informed a Board analyst that in 2002 the applicant submitted a certificate to the FY 2002 DA RCSB, and for the FY 2003 DA RCSB he submitted a letter to the president of the board.

17.  Army Regulation 135-155 governs the promotion of Reserve officers.  Paragraph 2-7 specifies to be eligible for selection, an USAR officer who meets the eligibility requirements must be properly in an active status and participating satisfactorily in Reserve training.  For promotion purposes, an officer is deemed 
to be a satisfactory participant and in full compliance with the commander’s instructions if, within the 12 months before the convene date of the board.  USAR warrant officers in grades CW2 and CW3 who twice fail to be selected for 
mandatory promotion to CW3 or CW4 will not again be considered for promotion. Twice non-selected warrant officers will be transferred to the Retired Reserve or discharged.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his non-selection by two Department of the Army Mandatory Promotion Boards to the grade of CW4 should be annulled or a waiver be granted so that he may be removed from forced retirement and be allowed to return to his unit in the ARNG.

2.  On 14 March 1999, the applicant was honorably separated from the CAARNG and transferred to the USAR Control Group (Reinforcement) in the rank of CW3. He was twice non-selected by the DA RCSB for promotion to the grade of CW4. By regulation, as long as the applicant was in an active status (and his service in the IRR was an active Reserve status) his records would be considered by a mandatory promotion board.  Based on his two non-selections to CW4 and based on the regulatory guidance, he was required to be discharged from the USAR after his second non-selection.  He was discharged for that reason on 
10 November 2003.  

3.  The applicant further contends that he was not notified of errors and omissions in his personnel file, nor was he given the opportunity to correct them until after the promotion board had non-selected him.  However, evidence of record shows that his Certificate for Senior Warrant Officer Training and his officer evaluation report ending April 9, 1998 were seen by both selection boards. He was mailed notification memos and given the opportunity to submit documents to the selection board.  Evidence shows that he was well aware of the 2002 and 2003 DA RCSBs and had ample time to review his records for promotion consideration, even providing documents to the respective promotion boards.

4.  The applicant’s discharge for being twice non-selected for promotion was proper and equitable and there is no basis to grant the relief requested.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx __  ___xx  _  ___xx  __  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.



      ___xxxxx _
      		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)                                         AR20080003854



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ABCMR Record of Proceedings (cont)                                         AR20080003854



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