IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20090019830 


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 effective date and date of rank to chief warrant officer two (CW2) be adjusted to 2 May 2005 and that his promotion to chief warrant officer three (CW3) should be adjusted accordingly.

2.  The applicant states he completed the Warrant Officer Candidate School on 2  May 2003 and was appointed as a warrant officer one (WO1) on that date.  He completed the warrant officer basic course (WOBC) on 23 July 2004 and was promoted to CW2 on 12 October 2005.  He contends his unit made a mistake in submitting his promotion packet late by interpreting the procedures/timelines incorrectly.

3.  The applicant provides the following documents in support of this application:

* National Guard Bureau (NGB) Form 62-E (Application for Federal Recognition)
* warrant officer appointment certificate
* promotion orders and memorandum
* DA Form 1059 (Service School Academic Evaluation Report)
* military occupational specialty award memorandum

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the U.S. Marine Corps, the applicant enlisted in the Army National Guard (ARNG).

2.  NGB Special Orders Number 145 AR, dated 9 June 2003, show he was granted Federal recognition for initial appointment to WO1 effective 2 May 2003.

3.  On 23 July 2004, he completed the Field Artillery Targeting Technician WOBC.

4.  On 19 July 2005, he was given a temporary physical profile for failing the Cardiovascular Screening Program Phase I.  His assignment limitations did not permit him to participate in Army physical fitness training and testing.  He was found medically unfit for deployment.

5.  On 19 September 2005, he was cleared for Army physical fitness training and testing.

6.  On 12 October 2005, the Mississippi ARNG issued Orders Number 285-082 promoting the applicant to CW2 with an effective date and date of rank of 12 October 2005.

7.  On 19 October 2005, the NGB issued Special Orders Number 301 AR extending the applicant Federal recognition in the grade of CW2 effective 12 October 2005.

8.  On 23 September 2009, the Mississippi ARNG issued Orders 266-890 promoting the applicant to CW3 with an effective date and a date of rank of 12 October 2009.

9.  In the processing of this case, a staff advisory opinion was obtained from the NGB Personnel Division.  That office recommends partial approval of the applicant's request to adjust his effective date and date of rank to CW2 to 2 May 2005.

10.  The advisory opinion states the applicant received initial appointment as a WO1 on 2 May 2003 and met the 2-year time-in-grade requirement for promotion to CW2 on 2 May 2005.  He completed the WOBC on 23 July 2004, meeting the educational requirements.  The advisory opinion further states that his unit submitted his promotion packet on 1 May 2005, but it appears the packet was rejected at the State level because he had not completed his Periodic Health Assessment (PHA).  The examination was completed on 12 June 2005, but the medical report stated he required further evaluation and ordered him to undergo a phase II cardiovascular screening.  The required evaluation was completed and he was cleared for physical fitness training and testing on 19 September 2005.  He was promoted to CW2 on 12 October 2005.  The advisory opinion concludes that the applicant was fully eligible for promotion on 12 June 2005, but his promotion was delayed until he was medically cleared with regard to the cardiovascular screening.  The cardiovascular screening was a medical issue and should not have delayed his promotion.

11.  A copy of the advisory opinion was forwarded to the applicant for information and to provide him the opportunity to submit comments and/or a rebuttal.  No response was received.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy for selecting and promoting commissioned officers of both the Army National Guard of the United States and the U.S. Army Reserve and warrant officers of the U.S. Army Reserve.  This regulation also covers promotion eligibility and qualification requirements.

13.  Paragraph 4-11 of Army Regulation 135-155 states that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve Components.  The officer must:  (1) be on the Reserve Active Status List serving in an active status, (2) be in the zone of consideration as appropriate, (3) be medically qualified, (4) have undergone a favorable security screening, (5) meet standards of the Army Body Composition Program, and (6) be a satisfactory participant (attend unit drills).

14.  The proponent of Army Regulation 135-155 confirmed that "medically qualified" is intended to mean when a complete medical examination, with all additional required tests/evaluations (such as cardiovascular screening), is completed.

15.  Army Regulation 40-501 (Standards of Medical Fitness) states the Cardiovascular Screening Program (CVSP) is required as part of the periodic health assessment for all Soldiers age 40 and older.  The CVSP begins with a Level 1 evaluation to determine the cardiovascular risk based on the presence of independent risk factors and consists, among other things, of an electrocardiogram (ECG).  If the ECG reveals certain findings, then a Level II screening is required.  The Soldier may then be referred to his or her primary care provider for cardiac risk reduction treatment and reduction.  The purpose of the medical referral is to confirm the presence of modifiable coronary risk factors and to advise and initiate medically appropriate treatments with the intent to modify cardiovascular risk.

16.  Paragraphs 4-12 and 4-13 of Army Regulation 135-155 state that each Ready Reserve officer is required to undergo a medical examination in accordance with Army Regulation 40-501 (Standards of Medical Fitness) at least once every 5 years.  A partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his effective date and date of rank to CW2 should be adjusted to 2 May 2005 and that his promotion to CW3 should be adjusted accordingly.

2.  Notwithstanding the advisory opinion which stated the applicant was fully eligible to be promoted on 12 June 2005, the date he completed the PHA, the fact is that he was found medically unfit for deployment because it appears he was required to undergo the CVSP Level II.  

3.  A requirement to undergo a Level II CVSP screening did not mean the applicant had a medical condition or physical disability.  It merely meant he was identified as having certain modifiable coronary risk factors.

4.  The applicant was not eligible for promotion to CW2 until 19 September 2005 when he was finally medically cleared.  This is the earliest date he could have been promoted, but it was delayed until 12 October 2005.

5.  On 12 October 2009, the applicant was promoted to CW3.

6.  In view of the above, the applicant's effective date and date of rank for CW2 should be adjusted to 19 September 2005.  As a result of this correction of his promotion to CW2, the effective date and date of rank for his promotion to CW3 should be adjusted to 19 September 2009.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

	a.  adjusting his effective date and date of rank to CW2 to 12 September 2005,

	b.  adjusting his effective date and date of rank to CW3 to 12 September 2009, and

	c.  auditing his military pay records and paying him any monies due as a result of this correction.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the effective date or date of 
rank of his promotion to CW2 to 2 May 2005, or basing any change in his promotion to CW3 on such a change to his CW2 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)                                         AR20090019830



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019830



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1