IN THE CASE OF:	 

		BOARD DATE:	       19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080008107 


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 rank be restored to Chief Warrant Officer Two (CW2) and that he be promoted to Chief Warrant Officer Three (CW3), that he receive additional compulsory service, and that he be paid back pay as a CW3 for his 13-month tour in Iraq.  He also requests transfer from the Control Group (Reinforcement) to a troop program unit (TPU).

2.  The applicant states, in effect, that he was repeatedly denied transfer from the Individual Ready Reserve (IRR) to a TPU as a CW2 from 1996 to 2000.  He contends that upon notification of his first non-select for promotion to CW3 he volunteered to travel to St. Louis, MO at his own expense to complete his promotion packet; however, officials at St. Louis told him not to come.  The applicant states that he served his eight compulsory years as an officer and that he wanted to retire as a CW3 when he reaches his 20-year mark of service.  He would like authorization to reclassify into a military occupational specialty that meets his career objectives.  He claims that during his tour in Iraq he met CW3s who were in his Warrant Officer class ten years earlier.  He also states that it is his belief that tax-free back pay for his year in Iraq is only reasonable.  He claims that he served a tour in Iraq as an interrogator and performed far more difficult tasks under short suspense to know that time periods are critical yet relative.  He further states that repeated, exhaustive, attempts were made to reapply for "Warrant"; restore his grade; correct what was done to his career within the system; and that only "deals" have been suggested to him which call for his extension of service, requirement of numerous waivers, and volunteering for further deployments.     

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter, dated 25 April 2008, he wrote to a Member of Congress; discharge orders, dated 12 September 2000; memoranda, dated 
5 August 1999, 17 March 1995, and 24 September 1992; orders, dated 17 May 1994 and 22 August 1990; his resume; DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for periods covering May 2003 through November 2003 and December 2003 through February 2004; and a letter, dated 7 May 2008, from a Member of Congress in support of his application.       

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.  Having prior active service in the Regular Army, the applicant was appointed a Warrant Officer on 1 October 1992 in the U.S. Army Reserve (USAR).  

3.  Headquarters, 124th U.S. Army Reserve Command, Fort Lawton, WA Orders 94-063-005, dated 17 May 1994, show the applicant was assigned to the USAR Control Group (Reinforcement).

4.  The applicant was promoted to CW2 in the USAR, effective 1 October 1994.  

5.   A memorandum, dated 5 August 1999, shows the applicant was considered by a Department of the Army Reserve Components Mandatory Selection Board but not selected for promotion to CW3. 

6.  Information obtained from the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis 


revealed that the applicant was considered by a Department of the Army Reserve Components Selection Board in 2000 but not selected for promotion to CW3.

7.  There is no evidence of record which shows the applicant was denied transfer from the IRR to a TPU during the period 1996 to 2000.

8.  On 29 October 2000, the applicant was honorably discharged from the USAR in the rank of CW2 due to being twice non-selected for promotion.

9.  The applicant enlisted in the USAR on 24 January 2003 in the rank of staff sergeant.  He was ordered to active duty on 21 March 2003 in support of Operation Enduring Freedom.  He served in Kuwait and Iraq from 3 May 2003 to 26 February 2004 and was released from active duty in the rank of staff sergeant on 26 March 2004.  
  
10.  The applicant's U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points, dated 10 February 2009, shows that he has 
18 years, 7 months, and 29 days of qualifying service for retirement.

11.  In the processing of this case, on 20 November 2008, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis.  The official pointed out that the applicant, as a WO, was considered and non-selected for promotion to CW3 by the 1999 and 2000 WO Selection Boards.  The reasons for his non-selections are unknown because board deliberations are not a matter of record.  A review of his board consideration files revealed his pertinent documents were viewed by the boards.  Pertinent documents in accordance with Army Regulation 135-155 are officer reports (OER), highest civilian education and highest military education.  It can only be assumed that the applicant's non-selections were due to the fact he only had one OER as a WO1 and no OERs as a CW2 for the board to evaluate his potential to perform at a higher grade.  Based on his two-time non-select for promotion the applicant was discharged from a reserve status as a WO in accordance with paragraph 4-33, Army Regulation 135-155.  That office stated that in view of the facts presented the applicant is not eligible to be restored to the rank of CW2 and promoted to CW3; therefore, it is recommended that his request be disapproved.         



12.  On 17 December 2008, the advisory opinion was furnished to the applicant for his information and possible comments.  He did not respond within the given time frame.

13.  Paragraph 4-33a of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that 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 WOs will be transferred to the Retired Reserve, if otherwise eligible, or discharged.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was twice non-selected for promotion to CW3 and was therefore discharged from the USAR on 29 October 2000 in accordance with the governing regulation.  Since there is no evidence that his non-selections were in error, there is no basis for restoring his rank to CW2, promoting him to CW3, or granting additional compulsory service.

2.  Evidence of record shows the applicant enlisted in the USAR and was ordered to active duty in an enlisted status and that he served in Kuwait/Iraq from 3 May 2003 to 26 February 2004.  Therefore, there is no basis for granting the applicant's request for back pay as a CW3 for his tour in Iraq.

3.  There is no evidence of record, and the applicant has provided no evidence, to support his contention that he was repeatedly denied transfer from the IRR to a TPU from 1996 to 2000.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      ______________________
               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)                                         AR20080008107



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008107



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1