BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130002280 


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 that his records be corrected by promoting him to the rank of chief warrant officer two (CW2), giving him credit for time lost for additional advancement, and restoring him to the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, that he was discharged because of failure to be promoted which was because his records did not contain a DA Form 1059 (Academic Evaluation Report) for completion of warrant officer flight training.  This administrative error caused him to be discharged from the USAR Control Group (Individual Ready Reserve); however, he has since located the DA Form 1059 and desires to have his records corrected and be allowed to completed his military obligation.  

3.  The applicant provides a page from Army Regulation 135-155 showing the criteria for promotion to CW2; Notification of Non-Selection for Promotion; DA Form 1059; certificates for completion of Warrant Officer Candidate School (WOCS) and UH-60A Black Hawk training; appointment certificate; discharge orders from the Alaska Army National Guard (AKARNG) and the USAR; Honorable Discharge Certificate; certificate of completion of the Aviation Life Support Equipment Technician Course; the front page of Officer Evaluation Reports (OER) ending on 30 September 1993, 27 January 1993, and                30 September 1996; DA Form 873 (Certificate of Clearance or Security Determination); and various awards and letters and certificates of appreciation.   



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 enlisted in the AKARNG on 26 March 1987 for a period of         8 years.  He completed his basic training and his advanced individual training as a helicopter repairman and was honorably released from active duty training on 23 January 1988 and returned to his AKARNG unit.  He was advanced to the pay grade of E-4 on 3 September 1988.

3.  On 31 March 1989, he was enrolled in OCS at the Alaska Military Academy.  He was released from OCS on 13 May 1989 for failure to meet minimum standards for leadership.

4.  On 26 March 1991, he completed the WOCS at Fort Rucker, Alabama.  On  14 January 1992 he completed the initial rotary wing aviator course at Fort Rucker and was appointed as a USAR and AKARNG warrant officer one (WO1).  He was assigned as an aviator with a unit at Fort Richardson, Alaska.

5.  On 6 November 1994, the applicant received a referred OER covering the period 1 October 1993 – 30 September 1994.  In Part Iva under Performance Evaluation – Professionalism, his rater gave him “4” ratings under “Demonstrates appropriate knowledge and expertise in assigned tasks” and “Displays sound judgment.”  He gave him “2” ratings under “Performs under physical and mental stress,, “Seeks self-improvement,” and “Possesses military bearing and appearance.”  He gave him “1” ratings in the remaining areas.  The rater’s supporting comments indicate that he was a below average UH-60 pilot and that he was chronically late.   

6.  In part V under Performance and Potential Evaluation his rater gave him an “Often Failed Requirements” ratings and indicated that the applicant was late for 


drills on six occasions, he did not keep his personal finances in order, he did not provide a recall number and he failed to meet his AAPART (acronym unknown) requirements within his AAPART quarters and required additional re-training to become re-qualified.  He also gave the applicant a “Do Not Promote” rating. 

7.  In part VII his senior rater placed him in the fourth block of his profile and indicated that the applicant’s personal problems had made it difficult for him to perform his duties in a manner that was expected.

8.  The applicant received another referred report covering the period 1 October 1994 – 30 September 1995.  In part IV his rater gave him “4” ratings under “Displays sound judgment” and “Sets and enforces high standards.”  He gave him “2” ratings under “Demonstrates appropriate knowledge and expertise in assigned tasks,” “Performs under physical and mental stress,” “Seeks self improvement,” and “Possesses military bearing and appearance.”  He received “1” ratings in the remaining areas.  The supporting comments indicate he was chronically late and he failed to take responsibility for his unexcused absences.

9.  In Part V his rater gave him a rating of “Often failed requirements” and indicated that he was late for two drills, he failed to teach an assigned class, and he had not completed his AAPART requirements.  He gave him a “Do Not Promote” rating and indicated that if he failed to meet standards by the end of the next rating period he should be recommended for discharge from the AKARNG.

10.  The facts and circumstances surrounding his administrative discharge are not contained in the available records; however, his records do contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows the applicant was honorably discharged from the AKARNG in the rank of WO1 due to Resignation on 1 February 1997.  He was transferred to the USAR Control Group (Reinforcement).

11.  On 4 September 1997, a memorandum was dispatched from the U.S. Total Army Personnel Command in St Louis, Missouri notifying the applicant that he was found not qualified for promotion and was also informed that officers who are not selected for promotion will be retained until their military obligation expires.  

12.  On 17 October 1997, the applicant was honorably discharged from the USAR.

13.  A review of his official records shows that the applicant’s DA Form 1059 is properly filed in the “Performance Section” of his Official Military Personnel File (OMPF). 

14.  Army Regulation 135-175 (Separation of Officers of the Army National Guard and USAR) provides, in pertinent part, that a WO1 who fails to qualify for promotion to CW2 will be discharged upon completion of his or her statutory military service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was discharged because his DA Form 1059 was missing from his records and prevented him from being promoted has been noted and appears to lack merit.

2.  The applicant received two OERs that recommended he not be promoted and he resigned his appointment with the AKARNG and was transferred to the USAR.

3.  His DA Form 1059 is properly filed in the performance section of his OMPF along with his evaluation reports; therefore, the absence of his DA Form 1059 could not be the reason he was discharged from the USAR as he claims.

4.  Accordingly, it appears that he was properly discharged after completing his statutory military service obligation.

5.  Therefore, there appears to be no basis to grant the applicant’s request for promotion or restoration of his service in the USAR.

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)                                         AR20130002280





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ABCMR Record of Proceedings (cont)                                         AR20130002280



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