BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090017923 


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 his date of rank (DOR) for chief warrant officer three (CW3) be adjusted to 23 January 2008.

2.  The applicant states in 2007 his initial Federal Recognition Board (FRB) voted not to recommend him for promotion to CW3.  Afterwards, the board president informed him his promotion was denied because of a General Officer Memorandum of Reprimand (GOMOR).  The GOMOR was originally filed in his restricted file and moved to the performance file just prior to the board.

3.  The applicant states in late 2007 he submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) to permanently move the GOMOR and all related documents from the performance portion to the restricted portion of his Official Military Personnel File (OMPF) on the integrated-Personnel Electronic Records Management System.  The board voted to approve the transfer of the GOMOR on 23 January 2008.  With this deficiency removed he inquired about an opportunity to be reconsidered for Federal Recognition in accordance with National Guard Regulation 600-101 (Warrant Officer - Federal Recognition and Related Personnel Actions).  Six months after his request, he was reconsidered for promotion by the FRB.  In June 2008, the FRB again disapproved promotion to CW3.  He contends the board's determination was the same even though the deficiency (GOMOR) was removed and not visible to this board.       


4.  The applicant states it is the board's responsibility to proceed in an impartial and independent manner.  Despite paragraph 9-14 of National Guard Regulation 600-101 which states the Adjutant General may authorize the individual to be reconsidered by a subsequent FRB if evidence indicates a material error existed in the record or if the deficiency for which you were initially rejected no longer exists and you meet all requirements specified for initial consideration, it was clear in the memorandum, dated 19 June 2008, that members on this board had prior knowledge of the GOMOR and utilized this knowledge in their decision.   

5.  The applicant also states he was unable to fully address this discrepancy due to a mobilization with the Texas National Guard that occurred three days later on 15 June 2008.  Upon returning from the deployment he again inquired about Federal Recognition with Arizona.  He was informed by staff personnel in his unit and the Arizona Office of Personnel Management he was no longer eligible or going to be considered for future FRBs.  With this notification he asked for a written memorandum stating the reasons why.  He was never given this memorandum but in July 2009 he was informed he would be reconsidered by an FRB in September 2009.  The reason given for the new board was there was a "material deficiency" found on the last board.  The September 2009 board favorably considered him for promotion.

6.  The applicant further states he was fully qualified and eligible for promotion in January 2008 but the Arizona Army National Guard did not give him the opportunity because of familiarity with his past incident.  He requests his CW3 DOR be adjusted to 23 January 2008 based on the transfer of the GOMOR from the performance portion to the restricted portion of his OMPF.  

7.  The applicant provides:

* National Guard Bureau (NGB) 89 (Proceedings of a Federal Recognition Examining Board) dated 14 May 2007
* Memorandum dated 23 January 2008 from the DASEB
* NGB 89 dated 12 June 2008
* Federal Recognition Notification Memorandum dated 19 June 2008
* Promotion orders   

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a chief warrant officer two (CW2) in the Army National Guard effective 13 December 2002.

2.  On 14 October 2004, the applicant received a GOMOR for shoplifting from the Post Exchange (stole a cuticle trimmer of a value of $2.45).
3.  On 14 May 2007, an FRB was held by the Arizona Army National Guard to determine if the applicant was qualified to be awarded Federal Recognition as a CW3.  The Board found the applicant not morally qualified and recommended that he not be granted Federal Recognition.

4.  On 23 January 2008, the DASEB approved the applicant's request to transfer the GOMOR, dated 14 October 2004, and all related documents, from the performance portion to the restricted portion of his OMPF.  The notification memorandum states, in pertinent part, the transfer is based upon intent served.  It is not to be considered retroactive and, therefore, does not constitute grounds for referral to a Special Selection Board for a previous non-selection.

5.  On 12 June 2008, an FRB was held by the Arizona Army National Guard to determine if the applicant was qualified to be awarded Federal Recognition as a CW3.  The board found the applicant not morally qualified and recommended that he not be granted Federal Recognition.  

6.  A Federal Recognition Notification memorandum, dated 19 June 2008, informed the applicant his request for promotion to CW3 was not favorably considered by the FRB that convened on 12 June 2008.  The memorandum states the members of the FRB concluded he was not morally qualified to be promoted to the next higher grade.  This memorandum points out in accordance with paragraph 9-14, National Guard Regulation 600-101, the Adjutant General may authorize reconsideration by an FRB if evidence indicates that a material error existed in the record or if the deficiency for which he was initially rejected no longer exists and he met all other requirements specified for initial consideration. 

7.  The applicant was ordered to active duty on 15 June 2008 in support of Operation Iraqi Freedom.  He served in Iraq from 25 August 2008 to 24 May 2009 and was released from active duty on 4 July 2009.  

8.  Departments of the Army and the Air Force, NGB Special Orders Number   225 AR, dated 15 September 2009, show the applicant was granted Federal Recognition for promotion to CW3 effective 3 September 2009.

9.  The applicant was ordered to active duty on 19 January 2010.

10.  In the processing of this case, a staff advisory opinion was obtained from NGB.  That office recommends disapproval of the applicant's request to adjust his CW3 DOR to 23 January 2008.  This recommendation is based on paragraphs 7-1 and 7-2 of National Guard Regulation 600-101.  The opinion points out the applicant received a Federal Recognition Notification memorandum, dated 19 June 2008, informing him the FRB did not favorably consider him for promotion to CW3 and concluded he was not morally qualified to be promoted to the higher grade.  He was also informed a subsequent FRB may reconsider him if evidence indicates that a material error existed in the record or if the deficiency for which he was initially rejected no longer existed and he met all other requirements specified for initial consideration.

11.  The advisory opinion states the promotion of warrant officers in the Army National Guard is a function of the State.  The FRB determines potential of officers for service in the next higher grade; therefore, the FRB's finding on 
19 June 2008 stands.  There is no evidence the 19 June 2008 FRB used the GOMOR as their basis for their determination of the applicant's capability to perform in the higher grade.  Furthermore, the Resolution of Unfavorable Information memorandum, dated 23 January 2008, stated "it is not to be considered retroactive, and therefore, does not constitute grounds for referral to a Special Selection Board for a previous non-selection."  The 2009 FRB determined the applicant has potential for service in the next higher grade and promoted him on 3 September 2009.  This showed the 2009 FRB felt the applicant finally had the capability and the potential to perform in the next higher grade.  The 2009 FRB determination does not constitute the DOR of the applicant to be backdated.  

12.  On 22 March 2010, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 29 March 2010, the applicant requested a 30-day extension.  On 22 April 2010, the applicant responded.  In summary, he states there are discrepancies in the State of Arizona's handling of his promotion boards and he reiterates his previous contentions.  He claims the burden of proof required to present the injustice and bias that occurred on the 
19 June 2008 FRB requires the state to admit their mistakes and bias in this process.  He contends that occurred in September 2009 when he was granted a reconsideration FRB and the basis for this was a "material error" which had occurred in the June 2008 FRB.  He claims the subsequent actions from the Arizona National Guard could be perceived as both hostile and unforgiving towards him.  He was counseled twice behind closed doors by the State Aviation Officer and State Officer Personnel Management, and he was told directly he was done in the Arizona Guard and he would never be recommended or receive promotion in the State.  He continued to work in a hostile environment both as a full-time Federal technician and part-time as an M-day Soldier.

13.  The applicant states the 2008 FRB's negative decision was based on information (access to the GOMOR) that should not have been reviewed, thus leading to the material error.  It was not corrected at the time of the June 2008 FRB and the FRB made the decision based on the erroneous information.  This resulted in the State Adjutant General making his decision to allow him to be reconsidered for promotion.  The advisory opinion did not acknowledge the mistake that occurred on the June 2008 FRB.  Based on this evidence he should be granted a change in his DOR to reflect a June 2008 promotion.

14.  Paragraph 7-1 of National Guard Regulation 600-101 states the promotion of warrant officers in the Army National Guard is a function of the State.  Paragraph 7-2 states, in pertinent part, promotions will be based on potential for service in the next higher grade as determined by an FRB.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant received a GOMOR in October 2004.  
There is no evidence the GOMOR was flawed or improperly prepared or filed.  

2.  In May 2007, an FRB found the applicant not morally qualified and recommended he not be granted Federal Recognition as a CW3.  

3.  On 23 January 2008, the DASEB approved the applicant's request to transfer the GOMOR, and all related documents, from the performance portion to the restricted portion of his OMPF.  

4.  In June 2008, a FRB again found the applicant not morally qualified and recommended that he not be granted Federal Recognition as a CW3.

5.  The applicant contends the 2008 FRB rejected considering him for promotion to CW3 based on him not being morally qualified to be promoted to the higher grade, a situation which no longer existed since the GOMOR was not in the performance portion of his OMPF.  However, there is no evidence the 2008 FRB used the GOMOR as their basis for determining the applicant's capability to perform in the higher grade.  In addition, the DASEB memorandum states the GOMOR transfer was based upon intent served and it is not to be considered retroactive.  Therefore, it does not constitute grounds for referral to a Special Selection Board for a previous non-selection.

6.  Evidence of record shows an FRB in 2009 determined the applicant had the potential for service in the next higher grade and promoted him to CW3 on 
3 September 2009.  Since the governing regulation states the promotion of warrant officers in the Army National Guard is a function of the State and promotions will be based on potential for service in the next higher grade as determined by an FRB, it appears the 2009 FRB determined the applicant finally had the capability and the potential to perform in the next higher grade.  Therefore, there is no basis for granting the applicant's request.    

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)                                         AR20090017923



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ABCMR Record of Proceedings (cont)                                         AR20090017923



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