PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  21 December 2000
	DOCKET NUMBER:  AR2000038326

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Ms. Gail W. Wire		Member	
	Mr. Ernest W. Lutz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration for promotion to the rank of CW3 with an appropriate date of rank.

3.  The applicant states that his records were omitted from the 1999 Reserve Component Warrant Officer Promotion Selection Board.  He submits copies of an official style photograph, an officer evaluation report, and certificates for two awards that he says should be added to his Official Military Personnel File (OMPF).  These documents will be returned to him for appropriate processing and filing in his OMPF.

4.  The applicant’s military records show that he enlisted for warrant officer flight training and entered active duty on 1 September 1989.  He was appointed a warrant officer on 29 November 1990.  He continued to serve on active duty and was promoted to the rank of CW2 effective 1 November 1992.

5.  He was not selected for promotion to the rank of CW3 by the active duty 1998 Warrant Officer Promotion Selection Board.  Effective 18 August 1998 the applicant was voluntarily separated from active duty and transferred to the USAR.

6.  The Reserve Component Warrant Officer Promotion Selection Board convened on 26 April 1999.  The applicant’s records were not available for review by the board.

7.  Information provided by the Army Reserve Personnel Command (AR-PERSCOM) indicates that the normal processing of an active duty officer, from the month of separation to the month of accessioning into the USAR, is approximately 10 months. Additionally, promotion consideration files have to be pre-sent for screening 1 month prior to the board convening date.

8.  The applicant was considered for promotion by the Reserve Component Warrant Officer Promotion Selection Board that convened on 24 April and adjourned on 12 May 2000.  He was selected for promotion to CW3 but his name was removed from the list because he was no longer in a Reserve Component status.

9.  Effective 12 May 2000, the applicant returned to active duty in the rank of CW2. His initial commitment was for 4 years active duty to fulfill an active Army requirement under Title 10, USC, section 12301(d).  The FY00 CW3 Warrant Officer Promotion Selection Board did not consider him because it convened on 2 May 2000, 10 days prior to his return to active duty.  He is scheduled for his second active duty promotion consideration to CW3 in May 2001.

10.  In the processing of this case an opinion was obtained from the Office of Promotions, Reserve Components, at the PERSCOM.  The opinion notes that for an officer to be considered for promotion by a standby advisory board (STAB) he must be a member of the Reserve Component considering his promotion.  In this case, a warrant officer active duty list officer cannot be eligible for a Reserve Component promotion advisory board.  The applicant was provided the opportunity to rebut the advisory opinion but did not respond within the established time frame.

11.  In a telephone conversation with a member of the staff of the Board, the chief of the warrant officer aviation branch at PERSCOM confirmed that the applicant would have been accessed back on active duty in the pay grade of CW3 and will continue in his present duty as a CW3 if selected by a STAB.

12.  Title 10, USC section 620, provides for the establishment by each military department of an active duty list.  The Army active duty list consists of all officers who are on active duty in the Army other than those listed under section 641 if this title.  Section 641 applies to Reserve officers ordered to active duty for training or ordered to active duty under section 12301(d) in conjunction with organizing, administering, recruiting, instructing, or training the Reserve Components.

13.  Army Regulation 135-155 provides the policy for Reserve Component officer promotions including USAR warrant officers.  It provides that, to be eligible for consideration for promotion, a USAR warrant officer must be in an active Reserve status.  An active Reserve status does not include personnel on the active duty list.

14.  The regulation also provides for promotion consideration by a standby advisory board (STAB) when an officer was eligible for promotion consideration but the records were not submitted to the proper selection board.  Standby advisory board consideration may be directed by the ABCMR.

CONCLUSIONS:

1.  The applicant clearly was entitled to consideration for promotion to CW3 by the RCSB that convened on 26 April 1999.  Therefore, he is entitled to promotion consideration by a special selection board (STAB) under the 1999 criteria for Reserve Component warrant officers.

2.  Notwithstanding that the Office of Promotions, Reserve Components, was without authority to promote the applicant to CW3 after his return to active duty, this Board may direct appropriate relief to remove an error or injustice.

3.  If selected for promotion to CW3 by the STAB he should be promoted with a date of rank and an effective date of rank as if he had been selected by the 1999 RCSB.  Furthermore, if he is entitled to an effective date of rank prior to 12 May 2000, he should be incorporated on the active duty list with the rank, date of rank, and effective date of rank as determined by the STAB action.

4.  The applicant should also be entitled to any back pay and allowances that may result from his promotion consideration by the STAB.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned by:

	a.  directing that the applicant’s records be considered for promotion to CW3 by a duly constituted Reserve Component special selection board under the 1999 criteria;

	b.  promoting him to CW3 if recommended and approved as a result of the Reserve Component special selection board;

	c.  providing him with a date of rank and effective date of rank as if he had been selected by the 1999 Warrant Officer Reserve Component Selection Board;

	d.  incorporating him on the active duty list with a date of rank and effective date of rank resulting from the special selection board action, as appropriate; and

	e.  showing that he is entitled to and paying him any back pay and allowances that convey from the results of the special selection board action.

BOARD VOTE:  

__kk____  __gw____  __el____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Karol A. Kennedy_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000038326	
SUFFIX		
RECON		
DATE BOARDED	20001221	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	131.11	
2.	128.00	
3.		
4.		
5.		
6.