IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080016141 


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 he be considered for promotion to chief warrant officer five (CW5)/pay grade W-5, by a promotion advisory board under the 2008 CW5 Department of the Army Reserve Components Selection Board (DA RCSB) promotion criteria.

2.  The applicant states, in effect, that there were material errors in his record in the form of two missing Officer Evaluation Reports (OERs) when he was considered for promotion by the 2008 CW5 DA RCSB.  He adds that over a period of several months two of his OERs failed to be added to his Official Military Personnel File (OMPF) in time to be considered by the promotion board, in spite of the multiple requests that he made to his Personnel Management Officer (PMO) at the United States Army Human Resources Command (HRC), Saint Louis, Missouri for help to correct the problem. 

3.  The applicant provides two OERs and ten pages of electronic mail messages exchanged between himself and his PMO during the period 16 February 2008 through 29 April 2008 as documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he is a member of the United States Army Reserve (USAR) Active Guard Reserve (AGR).  He was appointed as a Reserve Warrant Officer of the Army, in the grade of warrant officer (WO1)/pay grade W-1, effective 19 June 1990.  He was promoted to chief warrant officer two (CW2)/pay grade W-2, effective 19 June 1992; to chief warrant officer three (CW3)/pay grade W-3, effective 19 June 1997; and to chief warrant officer four (CW4)/pay grade W-4, effective 19 June 2003.

2.  The applicant provides ten pages of electronic mail messages exchanged between himself and his PMO during the period 16 February 2008 through 29 April 2008.  This correspondence shows that when the applicant visited HRC in Saint Louis to review his records, he discovered two OERs were missing from his OMPF.  The two missing OERs were for the periods 10 January 2005 through 9 January 2006 and 10 January 2006 through 16 April 2006.  This electronic mail correspondence also shows the applicant made numerous attempts to ensure that all of his OERs were processed and posted in his OMPF prior to the convening dated of the 2008 CW5 DA RCSB.

3.  The applicant was considered and not selected for promotion to CW5 by the 2008 CW5 DA RCSB.

4.  An advisory opinion was obtained on 2 January 2009 in the processing of this case.  The Chief, Special Actions, DA Promotions, recommended approval of the applicant’s request.  He stated that the applicant was considered for promotion by the 2008 CW5 DA RCSB that convened on 15 April 2008, but he was not selected.  The Chief, Special Actions, DA Promotions, stated that the applicant's board file was missing two OERs with through dates of 9 January 2006 and 15 April 2006, which should have been seen by the original selection board.

5.  On 16 January 2009, the applicant was furnished a copy of this advisory opinion.  He responded with his concurrence on 22 January 2009.

6.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard and of commissioned and warrant officers (WO) of the USAR.  Chapter 3 outlines board schedules and procedures.  Paragraph 3-3 provides guidance on the composition of promotion consideration files which are to be provided to selection boards for each eligible officer.  It states, in pertinent part, that OERs will be included in the performance portion of the OMPF.

7.  Paragraph 3-19 of Army Regulation 135-155 contains guidance on promotion reconsideration boards.  Paragraph 3-19a(1) provides that promotion advisory boards are nonstatutory boards, and are convened to reconsider all warrant officers, to include commissioned warrant officers.  These boards are convened to correct and or prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error, either were not submitted to a mandatory promotion selection board for consideration or contained a material error when reviewed by the mandatory selection board.

8.  Paragraph 3-19e of Army Regulation 135-155 provides that in order to find a material error, the HRC, Office of Promotions, must make a determination that there is a fair risk that one or more of the following circumstances was responsible:  (1) The record erroneously reflected that an officer was ineligible for  selection for educational or other reasons.  In fact, the officer was eligible for selection when the records were submitted to the original board for considera-tion; (2) One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3) One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4) One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5) Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6) An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7) The Silver Star or higher award was missing from an officer's OMPF; or (8) An officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect.

9.  Paragraph 4-21 (Effective dates) of Army Regulation 135-155 specifies, in pertinent part, that if an officer is selected by a promotion advisory board, the officer's date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer. Therefore, the officer may have a maximum time in grade date that is before the approval date of the promotion advisory board/special selection board that recommended the officer for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be considered for promotion to CW5/pay grade W-5 by a promotion advisory board under the 2008 CW5 DA RCSB promotion criteria was carefully considered and determined to have merit.

2.  The evidence of record shows that at the time the 2008 CW5 DA RCSB convened, the applicant's official military file contained a material error in the form of two missing OERs.  The available evidence also shows the applicant attempted to resolve the OER issues with his PMO at HRC prior to the date his promotion board convened; however, he was unsuccessful.  

3.  The Chief, Special Actions, DA Promotions, acknowledged that the applicant's board file was missing two OERs which should have been seen by the original selection board and recommended approval of the applicant’s request.

4.  In view of the foregoing, it appears that at the time the applicant's file was considered for promotion, he was disadvantaged by the absence of two OERs.  It is therefore concluded in the interest of justice and equity that it would be appropriate to grant the applicant's request for promotion consideration to CW5 by a promotion advisory board under the 2008 CW5 DA RCSB promotion criteria.
The applicant’s records should be corrected as recommended below.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:  

	a.  submitting the applicant's corrected records to a duly constituted promotion advisory board for consideration for promotion to CW5 under the 2008 CW5 DA RCSB promotion criteria;

	b.  promoting him to CW5 based on his assigned promotion sequence number with the appropriate date of rank (if selected), and providing him all back pay and allowances due, or by assigning him the appropriate promotion sequence number for future promotion purposes;

	c.  removing from his records all documents relating to the previous non-selection to CW5 (if selected); and

	d.  notifying the applicant if he is not selected for promotion.



      _______ _   __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)                                         AR20080016141



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ABCMR Record of Proceedings (cont)                                         AR20080016141



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