IN THE CASE OF:
BOARD DATE: 29 January 2013
DOCKET NUMBER: AR20110023542
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 correction of his chief warrant officer three (CW3) date of rank (DOR) in the Army National Guard (ARNG) to 13 January 2006, the date he was promoted in the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR).
2. The applicant states that according to the Texas ARNG, his DOR is 5 August 2008; however, he was promoted to CW3 in the USAR on 13 January 2006 which he believes should be his correct DOR.
3. The applicant provides USAR promotion orders in support of his request.
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. After previously serving in an enlisted and commissioned officer status in the Regular Army, USAR, and ARNG, the applicant was appointed as a warrant officer one in the USAR. He entered the ARNG and was extended Federal recognition in that status on 5 August 1997. The applicant was promoted to chief warrant officer two and was extended Federal recognition in that grade on 11 April 2000.
3. On 15 July 2006, the applicant was released from the ARNG and transferred to the USAR IRR.
4. On 6 August 2008, the U.S. Army Human Resources Command (AHRC) issued Orders B-08-805180 promoting the applicant to CW3 effective 5 August 2008 with a DOR of 12 January 2006.
5. On 12 September 2008, the applicant completed the Special Forces Warrant Officer Advanced Course (SFWOAC) and was appointed as a CW3 in the Texas ARNG. On 30 December 2008, the National Guard Bureau (NGB) published Special Orders Number 337 AR extending the applicant Federal recognition as a CW3 effective 12 September 2008. His ARNG record shows the effective date of his CW3 promotion as 12 September 2008 and his DOR as 5 August 2008.
6. In connection with the processing of this case, an advisory opinion was obtained from NGB. It recommends disapproval of the applicant's request. It states the CW3 promotion effective date and DOR, 5 August 2008, are the same in the USAR and ARNG. The difference in the two dates on the orders relates to the difference between the USAR and ARNG. The USAR conducts mandatory promotion boards for warrant officers and the ARNG does not. Finally, the applicant first became eligible for promotion to CW3 when he completed the SFWOAC on 12 September 2008. It finally concludes that his DOR in the Texas ARNG is correct and the State concurs with the recommendation.
7. On 6 December 2012, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to reply to or rebut its contents. To date, he has failed to respond.
8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), table 3-2 (Warrant Officer Time in Grade and Military Education Requirements), does not require completion of WOAC until consideration for promotion to chief warrant officer four.
9. National Guard Regulation 600-101 (Warrant Officers Federal Recognition and Related Personnel Actions) contains ARNG warrant officer promotion policy. It stipulates the minimum military education requirement for promotion to CW3 is completion of a warrant officer advanced course.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to correct his ARNG CW3 DOR has been carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record confirms the ARNG honored the promotion effective date assigned to the applicant in the USAR promotion orders issued by AHRC by awarding it to the applicant as his ARNG DOR. It also shows the applicant was not eligible for promotion until he completed the SFWOAC. As a result, he was not eligible for promotion in the ARNG on the earlier DOR assigned by the USAR. DOR assignment policies differ in the USAR and ARNG. The applicant's DOR in the ARNG and his promotion eligibility date in the USAR are not necessarily the same given the difference in the promotion policies of each component.
3. In view of the foregoing evidence, there is an insufficient evidentiary basis to support 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) AR20110023542
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ABCMR Record of Proceedings (cont) AR20110023542
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