IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110014420 


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) for promotion to the rank of chief warrant officer four (CW4) be changed from 25 May 2007 to 22 June 2002.

2.  The applicant states that in a recent records check he discovered that on 7 May 2001 he was transferred to the U.S. Army Reserve (USAR) instead of the inactive National Guard and should have been considered for promotion to the rank of CW4 while in the USAR or he should have been promoted upon his return to the Texas Army National Guard (TXARNG).  He also states that he had originally been told that he would be transferred to the inactive National Guard and that time would not count towards time in grade for promotion.

3.  The applicant provides a copy of his promotion orders to chief warrant officer three (CW3), a copy of orders transferring him to the USAR Control Group (Reinforcement), a copy of his 27 July 2004 orders appointing him to the TXARNG, a copy of orders granting him Federal Recognition effective 22 June 2004, and a copy of orders promoting him to CW4 effective 25 May 2007.  

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 enlisted in the Regular Army on 20 January 1987 and served until he was honorably discharged on 21 June 1988 to accept appointment as a warrant officer one (WO1).

3.  He was appointed as a USAR WO1 on 22 June 1988 with a concurrent call to active duty as an aviator.  He served on active duty until he was honorably released from active duty (REFRAD) on 1 June 1994 as a chief warrant officer two (CW2) under the Early Release Program with the Special Separation Benefit (SSB).  He was transferred to the USAR Control Group (Reinforcement) and was promoted to the rank of CW3 on 22 June 1996.  

4.  On 20 October 1998 he accepted an appointment in the TXARNG and was promoted to the rank of CW3 on 7 May 2001.  

5.  On 7 May 2001 he was honorably discharged from the TXARNG and was transferred to the USAR Control Group (Reinforcement).  However, Federal Recognition was not withdrawn until 9 September 2004.  Accordingly, the applicant was not accessed into the USAR and was not considered for promotion. 

6.  Meanwhile, he again accepted an appointment in the TXARNG in the rank of CW3 on 22 June 2004.  

7.  On 9 September 2004 Special Orders Number 220 AR were published withdrawing Federal Recognition for his previous transfer effective 7 May 2001.

8.  On 14 March 2007 he completed the warrant officer advanced course at Fort Rucker, Alabama and on 25 May 2007 he was promoted to the rank of CW4 in the TXARNG.

9.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which indicates that unless discharged from the USAR, a National Guard officer becomes a member of the USAR when Federal Recognition is withdrawn.  Officials at the NGB opined that the applicant’s issue should be addressed by the USAR.  The advisory opinion was forwarded to the applicant for comment and to date no response has been received by the staff of the Board.  

10.  Army Regulation 135-155 serves as the authority for the promotion of USAR and ARNG officers and warrant officers.  It provides, in pertinent part, that in order to be eligible for selection, warrant officers serving in the rank of CW3 must have completed the warrant officer advanced course for promotion to the rank of CW4.  That regulation also states that to be eligible for promotion consideration to the next higher grade a USAR or ARNG officer must be on the Reserve Active Status List (RASL) or the Active Duty List (ADL) for 1 year prior to the convening date of the selection board.  Additionally, the maximum time in grade for promotion to CW4 is 6 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was administratively transferred to the USAR Control Group (Reinforcement) on 7 May 2001; however, because Federal Recognition had not been withdrawn he could not be accessed into the USAR and he was essentially in the inactive National Guard.  Accordingly, he was not considered for promotion to CW4 during the period 2002 to 2004.

2.  However, had the applicant been considered for promotion during the 2002 – 2004 timeframe, he would not have been eligible for selection because he was not educationally qualified due to not having completed the warrant officer advanced course.

3.  Accordingly, it would serve no purpose to grant the applicant promotion reconsideration in the form of a Special Selection Board other than to create two non-selections for promotion during the period in question.

4.   It also appears that the applicant was promoted on time in accordance with the applicable regulations and there does not appear to be any basis for granting his request for an earlier DOR to CW4.

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)                                         AR20110014420





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ABCMR Record of Proceedings (cont)                                         AR20110014420



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