BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120006743 


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 to his date of rank (DOR) to chief warrant officer three (CW3) in the South Dakota Army National Guard (SDARNG) from 18 September 2009 to 1 October 2006.

2.  He states:

	a.  He was promoted to chief warrant officer two (CW2) on 1 July 2001 and was assigned to Company A, 1st Battalion, 227th Aviation, 1st Cavalry Division. He deployed to Iraq in 2003 and was then assigned to Fort Hood, TX.  He was deployed again in November 2005.  While deployed he was considered for promotion to CW3 with a DOR of 1 October 2006.

   b.  In order to be released from active duty he had to decline the promotion due to recent policy changes.  Once he returned from Iraq, he did a streamline transfer into the Texas Army National Guard (TXARNG) on 2 June 2007.  He also received a letter from the Individual Ready Reserve (IRR) stating he had been promoted to CW3 in the IRR.  He contacted the personnel office in TX and they said it was not valid since he did a streamline transfer.  He understood that if he declined promotion while on active duty, once he completed the course requirements, his DOR would be back dated to the original date of promotion on active duty in accordance with National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) to keep him on track with his peers.  
   
   c.  He completed the Warrant Officer Advanced Course (WOAC) online and the resident course in July 2009.  He was promoted to CW3 in September 2009 due to the lengthy Federal recognition process.  

3.  He provides 

* Declination of Promotion memoranda
* 2006 CW3 promotion orders
* Revocation of CW3 promotion orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Reserve (USAR) appointment memorandum
* two DA Forms 71 (Oath of Office – Military Personnel)
* TXARNG appointment memorandum
* two special orders (SO)
* 2009 CW3 promotion orders and memorandum

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 applicant's military records show he enlisted in the Regular Army (RA) on 7 June 1994.  He was honorably discharged from active duty on 30 June 1999 to accept a WO appointment.  He was appointed, as warrant officer one, on 1 July 1999.  He was promoted to CW2 on 1 July 2001.  

3.  On 13 August 2006, he declined promotion to CW3 in accordance with Army Regulation 600-8-29 (Officer Promotions).  His declination was approved on the same day.

4.  Orders Number 258-048 issued by the U.S. Army Human Resources Command (HRC) on 15 September 2006 promoted him to CW3 with an effective date and DOR of 1 October 2006.

5.  Orders Number 263-004 issued by HRC on 20 September 2006 revoked the orders promoting him to CW3.

6.  He was honorably discharged from active duty, in the rank of CW2, on 1 June 2007.  He was appointed in the USAR effective 2 June 2007.  His appointment memorandum showed his rank as CW3.

7.  He completed a DA Form 71 for appointment in the USAR in the rank of CW2 on 2 June 2007.  

8.  He was appointed in the TXARNG as a CW2 on 2 June 2007.

9.  The National Guard Bureau (NGB) published Special Orders Number 230 AR, on 24 September 2007, extending him an initial appointment and Federal recognition in the TXARNG effective 2 June 2007.

10.  He completed WOAC on 26 July 2009.

11.  Orders Number 272-502, issued by the Office of The Adjutant General, SD, on 29 September 2009, promoted him to CW3 with an effective date of 18 September 2009.  The orders advised him that the effective date of promotion in the ARNG would be the date permanent Federal recognition orders were published by the NGB.

12.  The NGB published Special Orders Number 250 AR, dated 14 October 2009, promoting him and extending Federal recognition in the rank of CW3 in the SDARNG with an effective date of 18 September 2009.  He was also issued a promotion memorandum.

13.  Army Regulation 600-8-29 prescribes the promotion function of the active duty military personnel system.  Paragraph 5-5 states an officer may decline a promotion by submitting a memorandum before the effective date of promotion.  Declination is irrevocable on or after the effective date of promotion.  The name of an officer who declines promotion will be deleted from the promotion list by Headquarters, Department of the Army.  The officer will not be eligible again for promotion as a result of action by the promotion selection board or special selection board.  Deletion from a promotion list based on declination of promotion will not constitute a non-selection for promotion.

14.  National Guard Regulation 600-101 prescribes the policies and procedures for ARNG WO personnel management.  Paragraph 7-8 states promotion to CW3 requires completion of 3 years TIG and completion of WOAC.  Appointment and promotion of WO's in the ARNG is a function of the State Adjutant General.  These appointments and promotions must be Federally recognized.  WO's may be examined for promotion not earlier than 3 months in advance of completing the prescribed promotion requirements so that, if recommended by a Federal Recognition Board (FRB), promotion may be effected on the date the promotion requirements are met.  FRB's convening to examine promotion of WO's who have passed their promotion eligibility date, may, if so recommended and determined fully qualified on their promotion eligibility date, consider granting temporary Federal recognition retroactive to that date, but not earlier than 90 days from the date of the FRB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was serving on active duty in the rank of CW2 with a DOR of 1 July 2001.  He was recommended for promotion to CW3; however, prior to accepting the promotion he elected to decline it.  His request was approved on 13 August 2006.  HRC published orders revoking his promotion to CW3 on
20 September 2006.

2.  He was released from active duty on 1 June 2007 in the rank of CW2.  He was subsequently appointed in the TXARNG and then the SDARNG.  He was extended Federal recognition and promoted to CW3 with an effective date and DOR of 18 September 2009 in the SDARNG.

3.  In accordance with the governing regulation, based on his declination of promotion to CW3 and its approval, his name was appropriately removed the promotion list.  Declination is irrevocable on or after the effective date of promotion.  It appears he was recommended for promotion to CW3 in the SDARNG in 2009.  This is the earliest possible promotion date for which he    was eligible.  He was not eligible for promotion to CW3 with a date of rank of        1 October 2006 as this promotion was deleted as a result of his declination in 2006.

4.  His contentions have been noted and were found to lack merit.  The evidence of record does not show his promotion to CW3 was unjustly delayed or that an administrative error occurred denying him a timely promotion to CW3.  He was properly promoted to CW3 in accordance with National Guard Regulation 600-101.  He was no longer eligible for promotion to CW3 under the provisions of Army Regulation 600-8-29.


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)                                         AR20120006743





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ABCMR Record of Proceedings (cont)                                         AR20120006743



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