IN THE CASE OF:	

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090018084 


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 that his date of rank (DOR) to chief warrant officer four (CW4) be adjusted to his original DOR to CW4 (20 January 2005).

2.  The applicant states that when his promotion packet to CW4 was forwarded it cited an expired National Guard Bureau (NGB) All States Log which provided for an exception to the education requirement.  He should have requested a waiver of the education requirement for promotion.  His subsequent request for an exception to policy to retain his rank was denied based on an incorrect assumption that he did not have the proper military occupational specialty (MOS) and there were no higher graded positions for him to be promoted into.

3.  The applicant also states that he served in the Active Guard and Reserve (AGR) as a training officer responsible for assembling officer and noncommissioned officer promotion packets and that he knew the requirements for officer promotions.  However, he did not know the All States Log which authorized the education exception had expired.  The applicant explains how the mix up in his MOS occurred and states that nobody has challenged his reasoning why he should have been granted a waiver of the education requirement for promotion to CW4.

4.  The applicant provides e-mail correspondence concerning his promotion.




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's military records show that while assigned to a troop program unit (TPU) in the Army National Guard (ARNG), on 4 February 2000 he was promoted to CW3.

3.  On 5 August 2002, All States Log Number P002-0035 provided the authority to conditionally promote Guardsmen in the rank of CW3 to CW4 without completion of the Warrant Officer Staff Course (WOSC).  However, completion of that school was required within 2 years of promotion.  This directive specified that it expired on 31 July 2003.

4.  An ARNG G-1 Newsletter, dated 22 April 2004, stated "(All States Log Number P02-0035) Change in Military Education Requirements for Promotion to the Grade of Rank of Chief Warrant Officer Four (CW4), dated 19 August 2002, has expired.  Due to the expiration of this policy, effective 1 May 2004, the military education requirements identified in Chapter 7, NGR 600-101 must be completed prior to promotion to the grade of rank of CW4."

5.  On 20 January 2005, the applicant was promoted to CW4.

6.  On 25 January 2006, the applicant's brigade commander submitted a request for a waiver of the WOSC for the applicant and that he be allowed to retain his rank.  In that request the brigade commander stated that the brigade had established an order of merit list (OML) for WOSC based upon their warrant officer's DOR.  The applicant's DOR was not high enough on the OML for him to attend.  The brigade commander added that the applicant served in an AGR position in the unit and that due to his responsibilities and other mandatory classes he had not attended WOSC.  The applicant's absence would have caused an undue burden to the brigade.

7.  The State Adjutant General recommended approval of the brigade commander's request.

8.  On 1 March 2006, the NGB denied the brigade commander's request for a waiver of the WOSC for the applicant.  The NGB stated that when the applicant was promoted the education waiver provision had expired and the applicant was not qualified in the MOS for which he was being promoted into.  The NGB concluded the applicant's promotion had to be revoked.  

9.  The applicant attended WOSC from 6 February to 3 March 2006.

10.  On 16 March 2006, the applicant was promoted to CW4.

11.  In the processing of this case an advisory opinion was obtained from the NGB.  The NGB states that the applicant was promoted to CW4 without having completed the required training (WOSC) or time in grade (TIG).  He was promoted on 20 January 2005 and did not have his 5 years TIG until 4 February 2005.  The NGB explains that on 5 August 2002, All States Log Number 
P002-0035 provided the authority to conditionally promote Guardsmen in the rank of CW3 to CW4 without completion of the WOSC, but that directive expired on 31 July 2003.  The NGB goes on to state that an error was made when that Bureau previously stated that the applicant did not hold the required MOS for the position he was being promoted into and explains how that mistake was made.  The NGB continues that the applicant was not given the opportunity to rebut the reasons cited for his reduction in rank as required by Army Regulation 135-155.  The NGB recommends that the applicant's DOR be adjusted to 4 February 2005.

12.  Army Regulation 135–155, Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, Table 2–3, Warrant officer time in grade and military education requirements, states that for promotion to CW4 an officer must complete WOAC and have a minimum of 5 years TIG as a CW3.  Paragraph 3-18 states that an officer whose promotion has been announced will be notified immediately on preliminary determination that the promotion was unauthorized.  The notification will be sent by certified mail for delivery to the addressee only.  A return receipt will be requested using PS Form 3800 (Receipt for Certified Mail).  An equivalent form of notice may be used if such service is not available by the U.S. mail at an address outside the United States.  The notice will inform the officer of the basis for the preliminary determination.  The notice will further advise the officer that he or she may submit matters in rebuttal in writing within 30 days from the date of delivery.  Coordination with the servicing Staff Judge Advocate is necessary if the preliminary determination indicates that a promotion was unauthorized and involves possible underlying criminal misconduct by the officer.  This must be done before notifying the officer of the preliminary determination and of his or her opportunity to submit rebuttal matters.  Headquarters, Department of the Army (HQDA) will review any rebuttal materials submitted by the officer.  HQDA will then make the final determination regarding the validity of the promotion and if the officer served in a de facto status in the grade to which invalidly promoted. Revocation of promotion orders, if appropriate will occur after these final HQDA determinations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not meet the TIG and education requirements for promotion to CW4.  As such, his promotion order was properly revoked.

2.  The applicant's brigade commander stated that the applicant was not high enough on the OML to be scheduled for the WOSC prior to his erroneous promotion.  The OML was based on DOR.  Therefore, it must be presumed that the applicant's situation was no different than others in his brigade who also had to wait their turn on the OML to attend the required training.  While the applicant had work-related demands, so did all of the other citizen Soldiers assigned to his command.  As such, the applicant's rationale for being granted a waiver of the education requirement is not accepted.

3.  The applicant was an AGR (full-time manning) officer who prepared the promotion packets for an aviation brigade which would have a large population of warrant officers.  As such, he would be expected to have been aware that the exception to the education requirement for warrant officers had expired and that he did not have the minimum TIG for promotion.  Also, since the applicant was responsible for the promotions in his brigade, he would have been responsible for making the notifications provided by Army Regulation 135-155, paragraph 
3-18.  As such, the absence of the notification required by this regulation is not considered a material violation of the applicant's substantial rights.

4.  While the NGB may have erred when it stated that the applicant did not have the proper MOS for the position he was being promoted into, it was a harmless error since the applicant did not meet the TIG or education requirement for promotion.

5.  The applicant was promoted to CW4 immediately following his completion of WOSC.  To waive the education requirement would be giving him a benefit not provided to other warrant officers in similar situations.

6.  In view of the foregoing, 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)                                         AR20090018084



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018084



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1