IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20110020759 


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:

* a military educational waiver 
* reconsideration for promotion to chief warrant officer four (CW4) by the Fiscal Year 2011 (FY2011) CW4 Non-Active Guard Reserve (AGR) Promotion Selection Board
* personal appearance hearing

2.  The applicant states:

* he was passed over for promotion from CW3 to CW4 by the FY2011 CW4 Promotion Selection Board because he had not met the pre-requisites for military education (Chief Warrant Officer Advanced Course (WOAC))
* the FY2011 CW4 Non-AGR Promotion Selection Board did [not] give proper consideration to his packet
* he was attending WOAC during the period 28 March 2011 to 29 April 2011 when the FY2011 CW4 Non-AGR Promotion Selection Board began on 12 April 2011

*	this should have satisfied the pre-requisites for promotion 

* he submitted a memorandum explaining his situation in accordance with guidance from the U.S. Army Human Resources Command (HRC) prior to the board convening

3.  The applicant provides:

* three emails
* self-authored memorandum, dated 8 March 2011, to the FY2011 CW4 Non-AGR Promotion Selection Board 
* two DA Forms 1059 ( Service School Academic Evaluation Report)
* memorandum, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, dated 9 November 2005
* memorandum, U.S. Army Criminal Investigation Command (CID), Fort Belvoir, VA dated 10 September 2007
* extracts from his Official Military Personnel  File (OMPF)
* résumé

CONSIDERATION OF EVIDENCE:

1.  After having served in the U.S. Army Reserve as an enlisted Soldier and attaining the rank/grade of sergeant/E-5, the applicant accepted an appointment as a warrant officer (WO1) on 22 May 1997.  He was promoted to CW2 on 22 May 1999 and CW3 on 21 May 2005. 

2.  An advisory opinion was obtained from the Chief, Special Actions, Department of the Army (DA) Promotions, HRC, dated 2 December 2011.  The advisory states, in pertinent part, the following:

   a. The applicant was considered but non-selected for promotion by the FY2011 CW4 Non-AGR Promotion Selection Board.  The required education for selection as outlined in Military Personnel (MILPER) Message 11-037, paragraph 4 and Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-3, is completion of WOAC prior to the convening of the selection board.

   b. The applicant had not completed WOAC prior to the board; therefore, he was not eligible for selection of promotion.
   
   c. He requested and was disapproved for selection of WOAC on 29 November 2010 in military occupational specialty (MOS) 311A (CID Special Agent) due to the fact his request for MOS reclassification from 351B (Counter-Intelligence Technician) had not been approved at that time.  His MOS reclassification occurred on 3 February 2011 with an effective date of 13 August 2010.
   
   d.  The applicant enrolled in WOAC on 28 March 2011 and completed the course on 29 April 2011.
   e. It is recommended he be approved for a military education waiver and promotion advisory board (PAB) consideration under the FY2011 criteria due to the fact his incompletion of the course prior to the board was through no fault of his own.

   f. In the event the applicant is scheduled for release from an active status, separation action should be suspended (unless ineligible per Title 10, U.S. Code/ Policy) pending the results of the PAB.

3.  On 22 December 2011 and 24 April 2012, the applicant was furnished a copy of this advisory opinion, but he did not provide a response.  

4.  Verbal confirmation with the advisory official confirmed that the advisory only meant that the Board could overturn the denial for an SSB, not that the regulation permitted an education waiver.  

5.  On 11 July 2012, the applicant was advised of the advisory official's clarification and provided an opportunity to respond.

6.  On 13 July 2012, the applicant responded indicating he fully exhausted every course of action available to him to meet and exceed the requirements for promotion consideration.  He further stated the promotion process should have a mechanism in place for situations such as his.

7.  Army Regulation 135-155 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 of the USAR.   

   a.  Paragraph 2-5d states warrant officers serving in a grade below CW4, in an active Reserve status, may be selected for promotion provided they meet the minimum promotion time in grade and military education requirements in 
Table 2-3 not later than the date the selection board convenes.  Table 2-3 requires completion of WOAC for promotion to CW4.  

   b. 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.
   
   c.  Paragraph 4-21 (Effective dates) specifies, in pertinent part, that if an officer is selected by a PAB, 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director, ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a military educational waiver and reconsideration for promotion to CW4 by the FY2011 CW4 Non-AGR Promotion Selection Board was carefully considered.

2.  Although the applicant requested to personally appear before the Board, it was determined that there was sufficient evidence available for a fair and impartial consideration of his case.

3.  The evidence of record shows that at the time the FY2011 CW4 Non-AGR Promotion Selection Board convened, the applicant had not completed WOAC and had been denied earlier attendance because of his MOS reclassification.

4.  The Chief, Special Actions, DA Promotions, acknowledged the applicant was not eligible for WOAC attendance due to his MOS reclassification and recommends approval of the applicant’s request.

5.  Although the advisory official first recommended granting him an education waiver, there are no regulatory provisions nor were there any provisions for a waiver in MILPER Message 11-037 for the FY2011 CW4 Promotion Board.  Therefore, granting his request would give him an advantage not otherwise available to many other CW3s.  He should not receive such advantage.
 
6.  In view of the foregoing, there is no basis to recommend granting the requested relief.








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)                                         AR20110020759



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ABCMR Record of Proceedings (cont)                                         AR20110020759



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