IN THE CASE OF:	  

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090008198 


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 adjustment of his date of rank (DOR) to chief warrant officer two (CW2) from 7 April 2006 to 22 July 2005 with all back pay and entitlements.

2.  The applicant states his promotion was delayed due to his security clearance not being processed in a timely manner.  He states the paperwork should have been submitted prior to 2004 before his previous clearance had expired.  He states three applications were submitted and his clearance was not granted until 8 months later.

3.  The applicant provides a copy of his Person Summary from the Joint Personnel Adjudication System (JPAS) 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.  The applicant was appointed a warrant officer one (WO1) on 19 May 2000 in the Pennsylvania Army National Guard (PAARNG).  He was granted Federal recognition effective 19 May 2000.  He had previously completed 11 years, 
8 months, and 3 days of enlisted service in the PAARNG.

3.  On 22 July 2005, the applicant completed the Field Artillery Targeting Technician Warrant Officer Basic Course.

4.  On 7 April 2006, the applicant was promoted to CW2 and he received Federal recognition effective the same date.

5.  On 4 May 2007, the applicant completed the Tactical Information Operations Course.

6.  In the processing of this case, on 28 September 2009, an advisory opinion was provided by the Chief, Personnel Division, National Guard Bureau (NGB), Arlington, VA.  The advisory official recommended the applicant's request to adjust his DOR be denied.  The official stated the regulations clearly state that a favorable security screening is required prior to promotion.  He further stated they were unable to confirm any information in regards to the applicant's security clearance or any interim security clearance from the time frame reference in the application.  Lastly, the State security manager indicated all historical data is periodically deleted or destroyed.

7.  On 5 October 2009, the applicant was provided a copy of this opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He was given 30 days to submit matters in rebuttal; however, no response has been received.

8.  The Person Summary from the Joint Personnel Adjudication System (JPAS), provided by the applicant, shows he currently holds a secret security clearance.  It also shows he was previously determined eligible for a secret clearance on
9 September 1994 by the Army Central Clearance Facility (CCF).  A National Agency Check with Local Agency and Credit Check (NACLC) from the Office of Personnel Management (OPM) was opened on 3 April 2006 and closed on
19 December 2007.

9.  According to the Defense Security Service (DSS) website an individual is normally subject to periodic reinvestigation at a minimum of every 10 years for a 
secret level clearance.  DSS also advises that individuals can help expedite the process by ensuring they have completed all forms in a thorough and accurate manner; familiarizing themselves with the appearance of a properly rolled set of fingerprints, to ensure they are recorded properly; and when possible, providing stateside references that can verify foreign activities.

10.  National Guard Regulation 600-101 (Warrant Officer - Federal Recognition and Related Personnel Actions) states in Table 7-1 that the minimum time-in-grade for promotion from WO1 to CW2 is 2 years.  Table 7-2 states that for promotion to CW2 the military education requirement is Warrant Officer Basic Course (WOBC), or equivalent certification within 2 years from date of initial appointment as WO1.  Paragraph 7-5 of this regulation states that a favorable security check is required for promotion.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) lists requirements that an officer who has been recommended for promotion to the next higher grade must meet before being promoted.  Having undergone a favorable security screening is among those requirements listed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his promotion to CW2 was held up due to a delay in the processing of his security clearance.  He contends his DOR should be adjusted to 22 July 2005, the date he completed WOBC.

2.  The Person Summary submitted by the applicant shows he was determined eligible for a secret clearance on 9 September 1994.  Based the information on the DSS website, this clearance expired on 9 September 2004.  The applicant met the 2 year time in grade requirement for promotion to CW2 on 19 May 2002, at which time his security clearance would not have been an issue.  However, he had not completed the required WOBC.  A NACLC was opened on 3 April 2006 and the applicant was promoted on 7 April 2006.

3.  An NGB official states they were unable to confirm any information in regards to the applicant's security clearance or any interim security clearance from the time frame referenced in the application.

4.  National Guard Regulation 600-101 and Army Regulation 135-155 are clear in that an officer must have a favorable security screening/check before being promoted.  When he completed the WOBC on 22 July 2005, he did not meet this requirement.

5.  There is no evidence that specifically states the only reason for the applicant's delay in being promoted was the fact that he did not have a current security screening/check.  There is no evidence to show that any delay in the processing of his security clearance was through no fault of his own.  There is also no evidence from the applicant's commander that he was otherwise eligible for promotion upon completion of the WOBC.

6.  In view of the above, there is insufficient evidence change the applicant's DOR to CW2.

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)                                         AR20090008198



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ABCMR Record of Proceedings (cont)                                         AR20090008198



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