BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090016640 


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 three (CW3)/pay grade W-3, by a promotion advisory board under the Fiscal Year (FY) 2009 CW3 Department of the Army Reserve Components Selection Board (DA RCSB) promotion criteria.

2.  The applicant states he does not believe the promotion board viewed all of the necessary information in his record.  The applicant also states, in effect, that there was a material error in his record in the form of a missing DA Form 67-9 (Officer Evaluation Report (OER)) when he was considered for promotion by the FY2009 CW3 DA RCSB.  He attributes this error to the fact that his unit did not submit his OER in a timely fashion so it could be added to his Official Military Personnel File (OMPF) in time to be considered by the promotion board, in spite of his efforts to get the OER processed.

3.  As a matter of background information, the applicant states when he was released from active duty and transferred to the Individual Ready Reserve (IRR) in 2000, he was not properly informed about the benefits or requirements of the IRR.  The following year he was selected for promotion to CW3 by the FY2002 CW3 DA RCSB, but he was never notified of his selection and as a result, he never acknowledged to the U.S. Army Human Resources Command (HRC) that he was accepting the promotion; therefore, his promotion was nullified.


4.  The applicant further states that following a period in an inactive status, he returned to an active status in late 2007.  He contacted HRC and was informed he would not be eligible for consideration by the FY2008 CW3 DA RCSB due to the regulatory requirement for him to be on the Reserve Active Status List (RASL) for 1 year before being considered for promotion, so he would not be eligible for consideration until the FY2009 board.

5.  As documentary evidence in support of his request, the applicant provides

* a resume
* four DA Forms 67-9
* two diplomas from Embry-Riddle Aeronautical University
* a DA Form 705 (Army Physical Fitness Test Scorecard)
* a Deployment Stabilization Statement
* two DA Forms 4186 (Medical Recommendation for Flying Duty)
* a DA Form 759 (Individual Flight Record and Flight Certificate - Army)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed as a Reserve Warrant Officer of the Army, in the grade of warrant officer (WO1)/pay grade W-1, effective 1 November 1990.  He entered extended active duty that date.  He was promoted to chief warrant officer two (CW2)/pay grade W-2, effective 1 November 1992.  He was released from active duty on 7 February 2000.  

2.  The applicant is currently a member of the Active Guard/Reserve assigned to Company A, 1st Battalion, 169th Aviation Regiment, 11th Aviation Command.

3.  An advisory opinion obtained in the processing of this case indicated the applicant had been considered and selected by the 2002 CW3 selection board.  As he did not have both a valid medical examination and a security clearance,   he was not promoted.  He was then placed in the inactive reserves effective      27 December 2006 and thus was removed from the selection board.  He returned to an active status on 12 June 2007 and was mobilized.

4.  The applicant provides the aforementioned documents which he contends should have been considered by the FY2009 CW3 DA RCSB.  Among these documents is an undated and unprocessed OER rendered for the rating period of 24 February 2008 through 24 November 2008.

5.  The applicant was considered and not selected for promotion to CW3 by the FY2009 CW3 DA RCSB.

6.  The applicant's record contains a processed OER rendered for the rating period of 24 February 2008 through 24 November 2008 which is dated 13 October 2009 by the rating chain and 17 October 2009 by the applicant. 

7.  In the processing of this case, an advisory opinion was obtained on from the Chief, Special Actions, DA Promotions, on 24 February 2010.  The recommendation was approval of the applicant’s request.  The Chief, Special Actions, stated, in pertinent part, that the applicant was considered for promotion by the FY2009 CW3 DA RCSB that convened on 14 April 2009, but he was not selected.  The applicant's board file was missing his most recent OER ending
24 November 2008; therefore, the OER was not seen by the selection board.  The applicant is entitled to be reconsidered by a selection board under the 
FY2009 criteria. 

8.  On 2 March 2010, the applicant was furnished a copy of this advisory opinion, but he did not provide a response.  

9.  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.

10.  Army Regulation 135-155, paragraph 3-19 contains guidance on promotion reconsideration boards.  Paragraph 3-19a(1) provides that promotion advisory boards are non-statutory 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 were either not submitted to a mandatory promotion selection board for consideration or the records contained a material error when reviewed by the mandatory selection board.

11.  Army Regulation 135-155, paragraph 3-19e provides a finding of material error requires the HRC, Office of Promotions to make a determination that there is a fair risk 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 consideration; (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.

12.  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 CW3/pay grade W-3 by a promotion advisory board under the FY2009 CW3 DA RCSB promotion criteria was carefully considered and determined to have merit.

2.  The evidence of record shows that at the time the FY2009 CW3 DA RCSB convened, the applicant's official military file contained a material error in the form of a missing OER.  The applicant attempted to resolve the OER issue with his unit prior to the date the promotion board convened; however, he was unsuccessful.  

3.  The Chief, Special Actions, DA Promotions, acknowledged the applicant's board file was missing an OER that should have been seen by the original selection board and recommends 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 an OER.  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 CW3 by a promotion advisory board under the FY2009 CW3 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 complete record to a duly-constituted promotion advisory board for consideration for promotion to CW3 under the FY2009 CW3 DA RCSB promotion criteria;

	b.  if selected, further correct the records by promoting him to CW3 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.  if selected, removing from his records all documents relating to the previous FY2009 non-selection to CW3 (if selected); or

	d.  if not selected, notifying the applicant accordingly.



      _______ _   _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)                                         AR20090016640



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ABCMR Record of Proceedings (cont)                                         AR20090016640



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