PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  25 September 2001
	DOCKET NUMBER:  AR2001051136

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Ronald E. Blakely		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, in effect, that the effective date for his promotion to chief warrant officer three (CW3), 6 October 1997, be corrected to 15 May 1997; that the effective date for his promotion to chief warrant officer four (CW4), 
1 August 2000, be redetermined by Special Selection Boards based on Calendar Year 1998 (CY98) and CY99 CW4 promotion board criteria; and that he be paid accordingly.

3.  The applicant states, in effect, that due to systemic and clerical error, he was promoted late to CW3 and was therefore promoted late to CW4.  After promotion to CW4, he was paid $1,409.63 promotion back pay but on the next month he was debited for $2,303.23 for overpayment.  He cannot get an answer to explain this debt collection.

4.  The applicant’s military records show that he served in the Army National Guard (ARNG) as an enlisted member from 16 May 1969 through 29 June 1981. On 30 June 1981, he was appointed a warrant officer (WO1) in the Arkansas ARNG in the Military Occupational Specialty (MOS) 290A, Cryptology Technician.  On 1 April 1984, he was promoted to chief warrant officer two (CW2).  On 11 March 1987, he signed an Oath of Office, DA Form 71, as a Reserve commissioned officer, CW2.

5.  On 17 July 1989, the applicant was transferred from being excess as a 
290A in Headquarters and Headquarters Detachment, 937th Signal Battalion, 
to a vacant duty position in MOS, 920B, Supply Systems Technician, in the Headquarters and Headquarters Battery, 1/233rd Air Defense Artillery.  He was transferred with the provision that he become technically certified in the MOS 920B within 3 years.  The applicant did not meet this requirement and was honorably discharged from the ARNG on 8 March 1993 for failure to complete required military education.  He was transferred to the U. S. Army Reserve (USAR) Control Group, Individual Ready Reserve (IRR), effective 8 March 1993.

6.  The applicant met the eligibility requirements for promotion consideration to CW3 in an IRR status.  The applicant was considered by the next available Reserve CW3 Promotion Board, the FY94 promotion board, but was not selected for promotion.  He was again considered by the FY95 Reserve CW3 Promotion Board and was selected for promotion.  The FY95 board convened on 2 May 1995, adjourned on 19 May 1995, the promotion recommendations were approved on 1 August 1995, and they were announced on 31 August 1995.  He was eligible for promotion to CW3 in the IRR, effective 19 May 1995, but for unknown reasons, this action was not accomplished.

7.  On 26 December 1995, the applicant was transferred from the IRR to a senior warrant officer position, MOS 250A, telecommunications technician, in the Headquarters and Headquarters Company, 4003rd U. S. Army Garrison Support Unit, 90th Regional Support Command (RSC).  On 3 October 1997, he was transferred to a MOS 250B, Signal Systems Maintenance Technician, senior warrant officer position.

8.  On 6 October 1997, the Army Reserve Personnel Command 
(AR-PERSCOM), Military Personnel Actions Branch, published a memorandum of promotion to CW3 for the applicant.  According to the memorandum, the effective date for the promotion was 6 October 1997 and the date of rank (DOR) for CW3 was shown as 9 March 1993, the day he was transferred to the IRR.

9.  However, on 5 January 1998, the AR-PERSCOM, Military Personnel Actions Branch, notified the 90th RSC that the applicant’s promotion was suspended because they did not have a copy of his DA Form 71, Oath of Office as a Reserve commissioned officer.  On 4 March 1998, the 90th RSC provided a copy of the requested DA Form 71 which was in his file and had been signed on 
11 March 1987.  On 29 January 1999, the 90th RSC received the applicant’s 
6 October 1997 promotion order from AR-PERSCOM.  His CW3 rank was pinned on him on 2 February 1999, according to 90th RSC records.

10.  The applicant was considered for promotion to CW4 by the CY2000 Department of Defense Reserve Component (DODRC) Selection Board for CW4 and he was selected for promotion.  This board looked at CW3s with a DOR of 21 December 1995 and earlier.  The board convened on 24 April 2000 and adjourned on 12 May 2000.  On 1 August 2000, the AR-PERSCOM, Military Personnel Actions Branch, published a promotion memorandum showing the applicant’s CW4 DOR as 9 March 1999, and his effective promotion date as 
1 August 2000, for pay and allowances.

11.  The CY99 DODRC Selection Board for CW4 convened on 26 April 1999, and considered for promotion to CW4, CW3s with a DOR of 31 December 1994 and earlier.  The CY98 DODRC Selection Board for CW4 convened on 28 April 1998 and considered for promotion to CW4, CW3s with a DOR of 31 December 1993 and earlier.

12.  On the applicant’s 22 September 2000 Leave and Earnings Statement (LES), he was paid $1,409.63 promotion/pay date change pay based on his CW4 DOR of 9 March 1999.  This provided the difference in pay between CW3 and CW4 for 44 Inactive Duty for Training (IDT) periods and 20 days of Active Duty (AD) previously paid at the CW3 rate.  It was then discovered that an error was made in the DOR and it was corrected to 1 August 2000 from which CW4 pay 

and allowances were authorized.  On his 27 September 2000 LES, full pay and allowances at the CW4 rate for 40 IDT periods and 19 AD days were collected back and he was paid the full CW3 rate for the 40 IDT period and 19 AD days, thus creating a debt of the difference plus the $1,409.63 already paid.  His 
25 October 2000 LES shows $396.43 paid on this debt plus $2303.23 debt remaining.

13.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-19a, states the effective date for promotion of a non-unit officer (IRR) selected by a promotion board will be the officer’s Promotion Eligibility Date (PED).  However, paragraph 4-19e, further states that promotion of officers with a PED that is prior to the adjournment date of the promotion board, will be promoted effective the adjournment of the promotion board.  Paragraph 4-15b states that the PED will be the DOR.  The PED is the date the officer meets the eligibility criteria for promotion to the next higher grade.  For a warrant officer, one day will be added to the date established.  Table 2.1.1 shows that the service requirements for promotion to CW3 are 6 years in the lower grade calculated from the DOR; and for promotion to CW4, they are 6 years in the lower grade calculated from the DOR.  Paragraph 4-19 and 4-10 also state that the officer must be in an active Reserve status (such as in the IRR or a Troop Program Unit but not in the Standby or Retired Reserve).  To be promoted in the IRR, the officer must be assigned to the IRR.  In the case of transfer from the ARNG to the IRR, the date following transfer will be the PED.

CONCLUSIONS:

1.  The applicant was promoted to CW2 in the ARNG, effective 1 April 1984, with a DOR of 1 April 1984.  He signed his Oath of Office, DA Form 71, as a Reserve commissioned officer, on 11 March 1987, before an officer authorized to administer the oath.  He was eligible for promotion to CW3 on 1 April 1990, with 6 years time-in-grade as a CW2 but he did not meet the military education requirements, completion of technical certification for MOS 920B, for promotion in the ARNG.  Consequently, he was not considered for promotion to CW3 while in the ARNG and was transferred to the IRR on 8 March 1993 for failure to meet this military educational requirement.  In accordance with AR 135-155, his PED for CW3 then became 9 March 1993, the day after his transfer to the IRR.

2.  After his transfer to the IRR and the establishment of his new CW3 PED of 
9 March 1993, he was considered for promotion to CW3 in the IRR by the next available promotion board, the FY94 promotion board, but not selected.  He was again considered by the FY95 promotion board and was selected for promotion.  The effective date for the applicant’s promotion to CW3 from the FY95 board

should have been the adjournment date of the board, 19 May 1995.  Through systemic oversight, he was not promoted until 6 October 1997, and actual promotion not conducted until 2 February 1999.  His effective date for promotion to CW3 should be corrected to 19 May 1995 and he should be provided pay and allowances as a CW3 from that date.  His DOR for CW3 is correct as 9 March 1993.

3.  The applicant was selected for promotion to CW4 by the CY 2000 promotion board which adjourned on 19 May 2000.  His present promotion memorandum to CW4, dated 1 August 2000, should be corrected to be dated 19 May 2000, the adjournment date of the promotion board and therefore the effective date for promotion to CW4 and the date from which CW4 pay and allowances should be paid.  His date of rank for CW4 is correct as 9 March 1999.  It appears that the Reserve Officer Personnel Management Act (ROPMA) rule of promoting effective the date the promotion list was approved was incorrectly used in setting the applicant’s promotion effective date instead of using the adjournment date of the promotion board according to AR 135-155 which applied.  This ROPMA rule does not apply to Reserve Warrant Officers.

4.  Based on a 9 March 1993 DOR for CW3, the applicant was eligible for promotion to CW4 six years later on 9 March 1999.  The first CW4 promotion board by which he should have been considered for promotion was the CY98 board which considered CW3s with DORs of 31 December 1993 and earlier but through oversight, he was not considered by the CY98 or CY99 boards and not considered until the CY2000 board.  He should therefore be considered by a Special Selection Board (SSB) for promotion to CW4 under the CY98 and CY99 promotion board selection criteria.  If selected for promotion under one of these board’s criteria, he should be promoted effective on the original adjournment date of that board or his CW4 DOR, 9 March 1999, whichever date is latest.  He should be provided commensurate back pay and allowances.

5.  The applicant’s debt was audited by the Reserve Pay Operations Center, Fort McCoy, and found to be a correct and just debt.

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

RECOMMENDATION:

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

a.  showing that he was promoted to CW3 effective 19 May 1995, the adjournment date of the promotion board that selected him for promotion to CW3, with a DOR of 9 March 1993, the day following the day he was transferred to the IRR and became eligible for promotion to CW3; 

b.  providing him adjusted pay and allowances as a CW3 effective 19 May 1995;

c.  showing that he was promoted to CW4 effective 12 May 2000, the adjournment date of the promotion board that selected him for promotion to CW4, with a DOR of 9 March 1999, the day he became eligible for promotion to CW4;

d.  providing him adjusted pay and allowances as a CW4 effective 12 May 2000; and

e.  considering him for promotion to CW4 by an SSB under the promotion board criteria for CY98 and CY99.  If he is selected for promotion, promote him and assign an appropriate date of rank.  If not selected for promotion, notify him of this non-selection.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__js___  ___le__  __rb        ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___John N. Slone__
		        CHAIRPERSON

INDEX

CASE ID	AR2001051136	
SUFFIX		
RECON		
DATE BOARDED	20010925	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Part	
REVIEW AUTHORITY		
ISSUES         1.	128 – Pay and Allowances	
2.	102.07 – Date of Rank	
3.		
4.		
5.		
6.