IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20120022354 


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 the effective date and date of rank (DOR) of his promotion to chief warrant officer three (CW3) from 19 November 2012 to     23 August 2011.

2.  The applicant states:

   a.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-5d, specifies "Warrant officers serving in a grade below chief warrant officer four (CW4), in an active Reserve status, may be selected for promotion provided they meet the minimum promotion time in grade (TIG) and military education requirements in Table 2-3 (Warrant Officer TIG and Military Education Requirements) not later than the date the selection board convenes."  Assuming the provisions of paragraph 2-5d are accurate, the applicant's TIG requirement was satisfied before the mandatory board convened.  Paragraph 4-21 states the DOR or promotion will not be earlier than the date the board is approved.  The promotion effective date is the date the board results are posted if all other promotion requirements are met.

   b.  Paragraph 2-5 states, "To be eligible for consideration for promotion to the next higher grade…must meet the TIG requirements in tables 2-1 or 2-3, as appropriate."  As written, table 2-3 indicates a span of 0 to 6 years is acceptable for mandatory board selection.  Actual TIG requirements are controlled by the Department of the Army zone selection according to paragraph 3-2.  This is the mechanism to control the end strength of the warrant officer corps.  The maximum TIG standard, which is what he was told applies, should only apply to Individual Ready Reserve and IMA Soldiers according to paragraph 4-15a-b.  It does not include Troop Program Unit Soldiers.

   c.  As a Reserve Soldier he takes his commitment seriously.  He wants to be promoted at the earliest possible time.  He began the pursuit of his promotion to CW3 with two questions in mind:  "What is the minimum TIG?" and "What does he need to do?"  He read the regulation many times and solicited information from other warrant officers, chief warrant officers, his chain of command, the U.S. Army Human Resources Command (HRC), and legal counsel.  He found he has been subject to an interpretation of the regulation which is very widespread and well ingrained in the Reserve.  It is flawed and inconsistent with the regulation.  References to TIG calculation in the regulation fail to recognize that the promotion zone is dictated by the Commander, HRC, Chief Promotions and it is flexible based on the needs of the Army.  Table 2-3 only governs the requirement to attend a mandatory board in the 6th year TIG for CW2s.  

3.  The applicant provides:

* a memorandum
* a list of names pertaining to the fiscal year (FY) 2011 CW3 and chief warrant officer four (CW4) selection results
* Orders B-11-207465
* a 37-page slide deck

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Pennsylvania Army National Guard (PAARNG), the applicant was granted Federal recognition in the grade of warrant officer one effective 19 November 2004.

2.  PAARNG Orders 075-1008, dated 16 March 2007, promoted the applicant to CW2 effective 8 March 2007.

3.  Department of the Army and the Air Force, National Guard Bureau (DAAF-NGB) Special Orders Number 84 AR, dated 9 April 2007, granted the applicant Federal recognition in the grade of CW2 effective 8 March 2007.

4.  On 21 February 2008, the Army Board for Correction of Military Records (ABCMR) recommended the applicant's records be corrected to show he was promoted and extended Federal recognition to CW2 effective 19 November 2006.

5.  DAAF-NGB Special Orders Number 170 AR, dated 3 July 2008, amended DAAF-NGB Special Order Number 84 AR by granting the applicant Federal recognition in the grade of CW2 effective 19 November 2006.

6.  On 1 October 2009, the applicant was honorably separated from the ARNG and transferred to the U.S. Army Reserve.

7.  On 25 June 2010, the applicant successfully completed the Military Intelligence Warrant Officer Advanced Course.

8.  The applicant provides and his record contains Orders B-11-207465, issued by HRC, dated 16 November 2012, which show he was promoted to the rank of CW3 with an effective date and date of rank of 19 November 2012.

9.  During the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, HRC, dated 26 February 2013, who concluded the applicant's DOR to CW3 was established in accordance with regulatory requirements.  The advisory opinion stated:
   
   a.  The applicant was correctly promoted to CW3 and awarded the maximum 6-year anniversary of his promotion to CW2.  The applicant's CW2 DOR was amended by ABCMR directive to 19 November 2006 which in turn established his maximum TIG for promotion to CW3 as 19 November 2012.

   b.  The FY 2011, Reserve Component CW3 Promotion Selection Board was approved on 28 July 2011 and subsequently released on 23 August 2011.  If the applicant had been past his established maximum TIG requirement on the release date of the associated promotion board, his effective date for pay purposes would have been 28 July 2011 and the DOR would have been the 
6-year TIG anniversary from promotion to CW2.  Note, a warrant officer is promoted without regard to occupying a valid warrant officer position for the next higher grade with the only requirement for promotion being reaching their maximum TIG and not being flagged for adverse action on the effective date of promotion.

   c.  A warrant officer who is being promoted based upon reaching the maximum 6-year TIG can be promoted on the date the board is released provided the officer is past the 6-year maximum TIG.  The effective date of the promotion for pay purposes is the approval date of the board and the DOR to the next higher grade is the 6-year TIG date anniversary (even if this date is prior to the approval date of the board).

   d.  The applicant is erroneously referencing Army Regulation 135-155, chapter 2, "Promotion Eligibility and Qualification Requirements" which actually addresses the minimum time requirements to be considered by a mandatory/position vacancy board and maximum TIG for promotion purposes.  As such, by table 2-3 of the aforementioned regulation, the minimum TIG for CW2 to CW3 is 5 years and the maximum TIG requirement is 6 years.  A warrant officer may be recommended for promotion at the minimum TIG date; however, the actual promotion is restricted by Army Regulation 135-155, paragraph          4-15(b) which refers to the TIG requirements as stated in table 2-3 and the associated maximum 6-year maximum TIG requirement.

10.  On 28 February 2013, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 26 March 2013, he responded stating, in effect:

   a.  He is a TPU warrant officer who was identified as being in the zone of consideration in February 2011.  He was selected by the mandatory board as being fully qualified on 28 July 2011.

   b.  The advisory opinion assumes that Reserve warrant officers in the grades of CW2 and CW3 must wait for the maximum TIG before promotion.  The U.S. Code, Department of the Army Memorandum 600-4, and Army Regulation     135-155 do not support or specify this requirement.  The advisory opinion lacks supporting evidence and provided unsupported or inaccurate citations.
   
11.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States and the USAR, and warrant officers of the USAR. This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations. 

   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 TIG and military education requirements in table 2-3 not later than the date the selection board convenes.  Nonselection for promotion per this paragraph constitutes a failure of selection for promotion.

   b.  Table 2-3 states for a position vacancy board the minimum years in the lower grade of CW2 to CW3 is 5 years.  For a mandatory board the maximum number of years in the lower grade of CW2 to CW3 is 6 years. 
   
   c.  Paragraph 4-15b states for warrant officers, the effective date is the later of the date of the promotion memorandum or the day following the date the officer completes the TIG requirements, as in paragraph a, above.  A USAR warrant officer, who received an Army of the United States promotion while on active duty, will be promoted the day after release from active duty to a permanent Reserve grade.  The grade will be equal to the highest temporary Army of the United States grade satisfactorily held on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR for promotion to CW3 should be changed from 19 November 2012 to 23 August 2011.

2.  The evidence of record shows that the applicant was granted Federal recognition in the grade of CW2 effective 19 November 2006.  This established his maximum TIG for promotion to CW3 as 19 November 2012.  On 1 October 2009, he separated from the ARNG and transferred to the U.S. Army Reserve.

3.  The applicant was selected by the FY 2011, Reserve Component Mandatory CW3 Promotion Selection Board which was approved on 28 July 2011 and subsequently released on 23 August 2011.  

4.  By regulation, a warrant officer may be selected for promotion upon reaching the minimum TIG date by a position vacancy board.  The applicant was not considered for promotion by a position vacancy board.

5.  When selected by a mandatory board (as was the applicant) based upon reaching the maximum TIG the promotion is restricted by Army Regulation     135-155, paragraph 4-15(b), which refers to the TIG requirements as stated in Table 2-3 and the associated maximum 6-year maximum TIG requirement.  

6.  In view of the foregoing, the applicant's effective date and DOR for promotion to CW3 are correct; therefore, he is not entitled to 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)                                         AR20120022354





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ABCMR Record of Proceedings (cont)                                         AR20120022354



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