IN THE CASE OF:	 

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080007768 


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, that his record be corrected to show his Chief Warrant Officer Three (CW3) date of rank (DOR) as 1 October 2006.  

2.  The applicant states, in effect, that his CW3 DOR should be changed to 
1 October 2006, which is the date he would have been promoted based on his sequence number on the active duty promotion list.  He states he declined his active duty promotion to CW3 based on the 2 year active duty service obligation (ADSO) in order to accept his current position in the Army National Guard (ARNG).  

3.  The applicant provides a copy of his Officer Record Brief (ORB) and a Unit Manning Report, dated 26 February 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he initially enlisted in the Regular Army (RA) on 27 August 1997.  He continually served in that status for 1 year, 10 months, and 4 days until being honorably discharged on 30 June 1999, in the grade of sergeant (SGT), in order to accept an appointment as a warrant officer.  

2.  On 1 July 1999, the applicant was appointed a Warrant Officer One (WO1) in the United States Army Reserve (USAR) and entered active duty in that status.  

3.  On 1 July 2001, the applicant was promoted to Chief Warrant Officer Two (CW2) and on 11 November 2005, he was appointed in the RA in that grade.
4.  The applicant submitted a DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 16 January 2007, in which he requested enlistment (appointment) in the ARNG.  

5.  On 1 March 2007, the applicant was honorably discharged from the RA under the provisions of paragraph 3-5, Army Regulation 600-8-24, for miscellaneous/ general reasons.  The DD Form 214 he was issued at that time shows that he served on active duty for a period of 7 years, 8 months, and 1 day and that he held the rank of CW2 upon his separation.

6.  On 2 March 2007, the applicant was appointed a CW2 and granted Federal Recognition in the Pennsylvania ARNG (PAARNG) in National Guard Bureau (NGB) Special Orders Number 102 AR, dated 30 April 2007.  

7.  In connection with the processing of this case, an advisory opinion was obtained from the Chief of Personnel Division, National Guard Bureau (NGB).  This NGB official stated that the applicant was on an active duty promotion list for CW3; however, he declined promotion because he would not accept the ADSO, and at that time accepted a CW2 appointment in the PAARNG.  He further states that promotion in the ARNG is a function of the State Adjutant General, and in this case the PAARNG recommended denial of the applicant's request and stated that in accordance with the governing ARNG regulation, warrant officers accessed from other components (RA) or services must meet the ARNG promotion requirements regardless of their eligibility prior to their Federal Recognition in the ARNG.  It further indicated that the applicant's CW3 promotion packet was submitted to the NGB on 25 July 2008, and he is currently awaiting Federal Recognition orders for that grade.  

8.  On 20 August 2008, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply.

9.  The applicant provides a copy of his unit manning report, dated 26 February 2008, which shows he is currently serving in a CW3 position.

10.  Army Regulation 600-8-29 (Officer Promotions), prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  Paragraph 5-5 states in pertinent part an officer may decline any promotion; however, the officer must be counseled by his or her rater about the impact of declination prior to completion of the declination memorandum.  It also states that a declination signed by the officer must be received by the Army Human Resources Command prior to the effective date of promotion and that the declination is irrevocable on or after the effective date of the promotion.  In addition, the regulation stipulates that the officer's name will be deleted from the promotion list by Headquarters, Department of Army (HQDA) and the officer will not be eligible again for promotion as a result of that particular action by the promotion selection board or special selection board that recommended him.  
11.  National Guard Regulation 600-101 prescribes the NGB policies governing the appointment, assignment and management of ARNG warrant officers.  Chapter 7 provides the policy for promotion of ARNG warrant officers and it states, in pertinent part, that warrant officer promotions are the function of the State.  Paragraph 7-7b states, in pertinent part, that warrant officers accessed from other components of services must meet the ARNG promotion requirements regardless of their promotion eligibility prior to their Federal recognition in the ARNG.  
14.  Army Regulation 350-100 (Officer Active Duty Service Obligations) establishes policies and procedures for the receipt, computation, and notice of active duty service obligations (ADSOs) for all commissioned officers and warrant officers serving on the active duty list.  Paragraph 2-5a states, in pertinent part, that those warrant officers who accept a promotion to the grade of CW3, CW4, or CW5, incur a 2-year ADSO.  This ADSO begins on the date of promotion and must be served prior to voluntary retirement.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he was promoted to CW3 with a DOR as 1 October 2006 based on his active duty promotion list status was carefully considered.  However, there is an insufficient evidence to support this claim.  

2.  By regulation, a warrant officer who declines promotion while on the active duty list is removed from that list and is no longer eligible for promotion based on that particular selection.  By the applicant's own admission, he declined promotion because he did not want to complete the required active duty service obligation.  Therefore, subsequent to this declination he would have been removed from the active duty promotion list and was no longer eligible for promotion to CW3 when he was appointed in the ARNG.  

3.  Further, by regulation, ARNG promotions to CW3 are the function of the State and must be accomplished in accordance with State policy and the governing ARNG  and Reserve regulations.  There is no evidence that the applicant's State had either recommended or selected the applicant for a position vacancy promotion, or that shows he was properly selected for promotion by a Reserve Component Selection Board.  As a result, even though he meets the time in grade and time in service requirements for promotion, he remained ineligible for promotion until he was properly recommended or selected through one of the designated regulatory processes.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




      _______ x_   _______   ___
               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)                                         AR20080007768



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ABCMR Record of Proceedings (cont)                                         AR20080007768



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