IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120003549 


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 adjustment of his date of rank (DOR) for promotion to chief warrant officer two (CW2), from 26 September 2007 to 19 November 2006.

2.  The applicant states he was appointed to warrant officer one (WO1) on 
19 November 2004 and was eligible for promotion to CW2 as of 19 November 2006.  His promotion packet was turned in but did not get processed until September 2007.  He never received an official explanation for the delay. 

3.  The applicant provides:

* Request for DOR adjustment memorandum, dated 21 January 2012
* Special Orders Number 24 AR, dated 26 January 2005
* National Guard Bureau (NGB) memorandum, dated 4 October 2007
* Special Orders Number 240 AR, dated 4 October 2007
* DA Forms 67-9 (Officer Evaluation Report) for the period 11 March 2005 through 1 September 2011

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.  On 19 November 2004, after prior enlisted service, the applicant was appointed as a Reserve warrant officer in the Pennsylvania Army National Guard (PAARNG).  On this same date, he executed an oath of office.

3.  Special Orders Number 24, NGB, dated 26 January 2005, extended him Federal recognition for his appointment to WO1, effective 19 November 2004.

4.  He successfully completed the Property Accounting Technician Warrant Officer Basic Course (WOBC), on 10 March 2005.  Upon the completion of this course he was awarded military occupational specialty (MOS) 920A (Property Accounting Technician).

5.  His military records contain a change of duty OER for the period 1 November 2005 through 31 May 2006.  His rater indicated "NO" in Part IV (Integrity).  The applicant received a "Satisfactory Performance, Promote" rating from his rater and a "Fully Qualified" rating from his senior rating in regard to his performance and potential.  His senior rater stated "Despite effort on his part, he was slow to grasp job requirements and on one occasion knowingly misrepresented the truth to the command regarding an accountability matter."  The senior rater recommended the applicant be reassigned and be provided another opportunity to execute the MOS for which he was trained.

6.  On 31 May 2006, the referred OER was forwarded to the applicant for his acknowledgement and comments.  He failed to respond by the suspense date.

7.  Orders 270-1028, PAARNG, dated 27 September 2007, promoted him to CW2 with an effective date and DOR of 26 September 2007.

8.  Special Orders Number 240 AR, NGB, dated 4 October 2007, extended him Federal recognition for his promotion to CW2 effective 26 September 2007.

9.  The applicant provides an account of the events in which he contends his promotion to CW2 was delayed for 10 months due to no fault of his own, and resulted in his promotion to chief warrant officer three being delayed by 
20 months.  He further contends that he submitted his application twice but was never informed as to why he was not promoted on time.  In his statement he lists his accomplishments which include managing a property book valued at over 
3 billion dollars, deploying with the only U.S. Army Reserve Stryker Brigade Combat Team, completing over 75 company level changes of command, and working on over 400 financial liability investigations.  In addition, he provides copies of evaluation reports found in his AMHRR.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  This official recommended disapproval of the applicant's request for adjustment of his DOR, citing no evidence of delay due to administrative error by the PAARNG.  The opinion further states that his promotion was delayed based on his performance as reflected in his referred OER for the period 1 November 2005 through 31 May 2006.  The PAARNG noted that the referred OER in the officer's promotion packet would have resulted in his packet being returned without action.  The officer would have been required to request The Adjutant General (TAG) approval for another Federal Recognition Board (FRB).  The additional time it took the applicant to get promoted met the timeline for the applicant to rehabilitate as suggested in his OER.  The State believes the applicant did not warrant promotion at the time he is suggesting he should have received it.

11.  On 17 December 2012, the applicant responded to the advisory opinion.  In his rebuttal he states that he exercised bad judgment when he misled his chain of command about the receipt and distribution of six laptops.  He contends that his supply noncommissioned officer (NCO) took receipt of six laptops designated for another office while he was on leave.  Upon his return from leave, the supply NCO informed the applicant that the Property Book Officer (PBO) had approved the decision to keep the computers in the section.  In an effort to build cohesion and trust among his team the applicant did not question this decision.  He later found out that the PBO was unaware of the situation.  Consequently, the office originally slated to receive the computers elevated the misappropriation of equipment to the commander at which time the applicant attempted to reallocate the equipment and "mislead [sic] the command on the whereabouts of the 6 laptop computers."  He deeply regrets his actions and asks the board to review his record before and after he received the referred OER.  Further, he believes the referred OER was sufficient punishment and should not be a consideration in his eligibility for promotion.

12.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states:

	a.  Promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Included in these requirements is that the warrant officer must be recommended by his immediate commander. 

	b.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 and the education requirements of Table 7-2 of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  According to these tables, the minimum time in grade for promotion to CW2 is 2 years in the lower grade and the minimum military education requirement for promotion to CW2 is completion of the WOBC.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides promotion eligibility and qualification requirements.  It states an officer found not qualified for promotion to 1LT or CW2 who was retained in an active status may be promoted if later determined qualified.  The promotion will not be earlier than the date the officer is determined qualified for promotion.  A memorandum for record will be prepared to explain the later promotion date.  A copy of the promotion notice and the memorandum for record will be placed in the officer’s Army Military Human Resource Record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests adjustment of his DOR for promotion to CW2, from 
26 September 2007 to 19 November 2006.

2.  Regulatory guidance states an officer is eligible for promotion to CW2 upon completion of 24 months time in grade and the WOBC.  The evidence of record shows his date of rank to WO1 was 19 November 2004 and he successfully completed WOBC on 10 March 2005.  However, he was not promoted to the rank of CW2 and granted Federal recognition until 26 September 2007, approximately 10 months beyond the time in grade requirement.

3.  The applicant contends that the PAARNG failed to process his promotion packet in a timely manner and never informed him why his promotion was delayed.  The applicant provides no evidence to support this contention, in fact the available evidence shows that he knew or should have known that the referred OER directly impacted his selection for promotion.  This OER shows he lacked integrity when he knowingly misrepresented the truth to the command regarding an accountability matter.  As a result, the report was referred to the 


applicant on 31 May 2006.  He failed to acknowledge the referral or to provide comments prior to the suspense date.  By his own admission he acknowledges that he did misrepresent the truth even if he did so only to support his Soldiers.

4.  His decision to support the unauthorized acquisition of property was an unlawful act which calls into question his decision making skills, integrity, and ability to perform his duties as a Property Accounting Technician.  Given the seriousness of his misconduct, in that he made false statements to his superiors, it would be unlikely that he would be recommended for promotion.  Therefore, his delayed promotion was not the result of an administrative processing error or an injustice as much as it was the inherent consequence of the applicant's inappropriate actions.

5.  In view of the above, his request should be denied.

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)                                         AR20120003549





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ABCMR Record of Proceedings (cont)                                         AR20120003549



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