PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           23 September 2003                  
	DOCKET NUMBER:   AR2003087548

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann, Jr.		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 adjustment of his date of rank for chief warrant officer four (CW4) to 4 April 2000, the day after his release from active duty (REFRAD).

3.  The applicant states that his promotion to CW4 was delayed from the release date of the board results due to erroneous data in his official personnel records.  Since 4 March 2000, he has been an active member of a troop program unit (TPU).  His promotions applications for the 2001 and 2002 were not accepted and he was not considered due to a complete absence of data in his Reserve records.  His records were corrected in June 2001 and the 2003 promotion board subsequently selected him.  In support of his application he submits copies of his promotion orders from the Army Reserve Personnel Command (AR-PERSCOM), his ARPC Form 249-2 (Chronological Statement of Retirement Points) and his electronic mail correspondence to AR-PERSCOM.

4.  The applicant’s military records show that he was appointed in the Regular Army as a warrant officer one effective 4 January 1983.  He attained the rank of CW3 effective 1 December 1992.

5.  He was involuntarily separated from active duty for 2-time non-selection for promotion to CW4 effective 1 March 2000.

6.  He was appointed in the Reserve as a CW3 effective 2 March 2000 and assigned to a TPU effective 3 March 2000.

7.  He completed a physical effective 3 January 2001.  A Suspension of Favorable Personnel Action (FLAG) was initiated against the applicant for being overweight.  The FLAG was favorably removed effective 12 January 2001.

8.  He was erroneously not considered for promotion to CW4 by the 2001 Reserve Components Selection Board (RCSB).

9.  He was considered and selected for promotion to CW4 by the 2002 Reserve Components Selection Board (RCSB).  The President approved the board results effective 18 July 2002.

10.  On 8 August 2002, the AR-PERSOCM issued a notification of suspended promotion status on the applicant for not having a current qualifying physical examination and being under a FLAG for being overweight.

11.  He was promoted to CW4 effective 23 December 2002.

12.  A staff member of the Military Personnel Actions Branch, AR-PERSCOM, expressed the opinion that the applicant was selected on the 2002 RCSB with an approval date of 18 July 2002 and release date of 6 August 2002.  His promotion eligibility date was 30 November 1998.  The applicant however did not meet the promotion qualifications until 23 December 2002, flagged for being overweight and not having a current physical.  She also stated that the date of rank is the date the officer actually or constructively was appointed or promoted to a specific grade.  It is the date used to determine the relative seniority for officers holding the same grade.  In computing a promotion eligibility date for a warrant officer, one day will be added to the date established.  The promotion is effective on the date qualifications are met or the date of time in grade for promotion to the next higher grade, which is later.

13.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 28 May 2003.  He did not respond.

14.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation specifies that a mandatory selection board will convene each year and consider USAR officers on the Reserve Active Status List (RASL), not on the active duty list for promotion.  First consideration for promotion will occur well in advance of the date the officer will complete the time in grade requirements.  To be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on the RASL for 1 year.

15.  This regulation also specifies that for warrant officers, the date of rank and effective may not be earlier than the date of the promotion memorandum, unless the officer concerned obtains correction of his or her records from the Army Board for Correction of Military Records.  The regulation does not specify that warrant officers are required to be assigned to a higher graded position for a promotion to be made.

16.  This regulation also specifies that when an officer has been recommended for promotion to the next higher grade, the officer’s promotion is automatically delayed when the officer is under suspension of favorable personnel actions.  The regulation also specifies that the date of rank and effective date of promotion after an involuntary delay due to any adverse administrative action, will be the day after the date a filing determination is made.

CONCLUSIONS:

1.  The applicant is entitled to adjustment to his promotion effective date and date of rank for CW4 to 18 July 2002, the date the President approved the 2002 CW4 promotion board.

2.  The Board noted his contentions that his date of rank should be 4 March 2000; however, the applicant had to be in continuous service on the RASL for 1 year to be eligible for promotion consideration.  Although, he was erroneously not considered by the 2001 RCSB after being in a continuous status for 1 year, he would not have been qualified for promotion had he been selected on the 2001 promotion board as he did not have a updated physical examination on file and his FLAG for being overweight had not been removed.  The applicant was not considered and selected for promotion to CW4 until the 2002 board convened.  This promotion was subsequently delayed because of a FLAG and not having a current physical examination on file.  Documentation in his records shows that he completed a physical examination effective 3 January 2001 and his FLAG was favorably removed effective 12 January 2001; therefore, his promotion effective and date of rank for CW4 should be the approval date of the 2002 RCSB.

3.  The Board also notes that the applicant was considered and not selected for promotion to CW4 in 2000 while on the active duty list and was not entitled to promotion consideration by the 2000 CW4 RCSB.

4.  Pertinent regulations show that promotion is effective on the date qualifications are met or the time in grade date for promotion to the next grade, whichever is later.

5.  The Board concludes that the 2002 CW4 promotion board considered and selected the individual and he should have been promoted with a promotion effective date and date of rank in accordance with his selection and eligibility.

RECOMMENDATION:

1.  That all of the Department of the Army records of the individual concerned be corrected to show that he was promoted in the USAR to chief warrant officer four with a promotion effective date and date of rank 18 July 2002, with entitlement to all back pay and allowances for this adjustment.

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

BOARD VOTE:  

_jlp____  _aao____  _phm ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_    Jennifer L. Prater_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087548	
SUFFIX		
RECON		
DATE BOARDED	20030923	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.