RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 February 2008 DOCKET NUMBER: AR20070006142 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. Ms. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Ms. Kathleen A. Newman Chairperson Mr. Jose A. Martinez Member Ms. Susan A. Powers Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his Chief Warrant Officer Three (CW3) promotion date be changed to 1 March 2006. 2. The applicant states that he was denied promotion based on a faulty application of regulations that have since been corrected. He served one year on active duty with his Reserve unit, from June 2002 to June 2003. After he redeployed, he worked his civilian job for 3 months, then he was activated as an individual for 3 years. He completed that assignment in September 2006. 3. The applicant states that while on active duty he was selected for promotion by the Active Duty List (ADL) CW3 promotion board with a promotion date of 1 March 2006. However, because he could not accept the 2-year active duty service obligation (ADSO) for the Government’s own reasons, the Army did not promote him. Meanwhile, he could not be considered by the U. S. Army Reserve (USAR) CW3 promotion board because he was on active duty. This month (his Board application is dated 18 April 2007) his packet goes before the USAR CW3 promotion board in an “above zone” status, which makes it appear that he was passed over for promotion. Now, everyone in his Warrant Officer Basic Course, including other Reservists, has already made CW3. 4. The applicant states that he could not accept the 2-year ADSO in March 2006 because the Army regulation requires a Reservist to serve the final 6 years of his 20 qualifying years as a Reservist in order to be eligible for a Reserve retirement. If he served the 2-year ADSO, he would have gone over that limit and lost his retirement. In addition, the Labor Code requires an employer to keep a Reservist’s job open for a maximum of 5 years. He had already served 4 years, and serving another 2 years would mean that he was gone (from his civilian job) for 6 years. That would have cost him his civilian job and destroyed his civilian retirement. These glitches have now been fixed and now Reservists caught in this situation are not punished in this manner for serving on active duty. However he was harmed by this situation. 5. The applicant provides Military Personnel (MILPER) message number 06-039, Subject: Promotion Numbers for March 2006; the results of the Fiscal Year 2005 (FY05) CW3 selection board; and his Officer Record Brief. CONSIDERATION OF EVIDENCE: 1. The applicant was born on 29 November 1951. After having had prior enlisted service in the Regular Army, USAR, and Army National Guard, he was appointed as a warrant officer in the USAR on 30 April 1999. He was promoted to CW2 on 30 April 2001. 2. The applicant entered extended active duty on 15 September 2003 for 3 years as an obligated volunteer officer. His active duty orders state in part that he was appointed in the Reserve grade of CW2 and “placed on the active duty list in the grade of WO2 in accordance with (IAW) AR 135-101. DOR TBD after EAD IAW AR 624-100. Early….” 3. The applicant was considered and selected for promotion to CW3 by the ADL FY05 CW3 promotion board with a sequence number of 238. His sequence number came up for promotion effective 1 March 2006. He was not promoted to CW3 because he did not have 2 years of active duty remaining to complete the required ADSO. 4. The applicant was released from active duty in September 2006 upon the expiration of his active duty commitment. 5. The applicant was considered and selected for promotion by the 2007 Reserve Components CW3 selection board, which was approved on 13 July 2007. He was promoted to CW3 with a date of rank (DOR) of 30 April 2007 with an effective date of 13 July 2007. 6. In the processing of this case, an advisory opinion was obtained from the Special Actions Branch, Promotions, U. S. Army Human Resources Command – St. Louis (USAHRC – STL). The advisory opinion noted that since the applicant was not promoted prior to his release from active duty he was not eligible for a DOR of 6 March 2006. He was selected for promotion by the 2007 Reserve Components CW3 selection board and promoted on orders dated 31 July 2007, with a DOR of 30 April 2007 and an effective date of 13 July 2007. Paragraph 4-17 of Army Regulation 135-155 states that a warrant officer’s DOR will be the date he meets the mandatory service requirements and promotion eligibility requirements. The applicant met the 6 years time in grade requirement on 30 April 2007; therefore, 30 April 2007 is his correct DOR. Paragraph 4-15 of the regulation states that the effective date will be the later of the date of the promotion memorandum or the day following the date he completes the TIG requirement. The promotion memorandum date of 31 July 2007 is the later of the two dates and is the applicant’s correct effective date of promotion. 7. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond within the time frame given. 8. Information obtained on 30 January 2008 from the Special Actions Branch, Promotions, USAHRC – STL indicated that if the applicant had remained in the Reserve promotion system, he would have been considered by the 2006 Reserve Components CW3 selection board, which was approved on 14 June 2006 and released on 27 July 2006. If he had been selected by the 2006 board, he would have been promoted effective 30 April 2007 with a DOR of 30 April 2007. 9. Army Regulation 600-8-29 (Officer Promotions) prescribes policies governing promotion of Army commissioned and warrant officers on the ADL. Paragraph 1-18b states that a warrant officer who accepts promotion to the grade of CW3, CW4, or CW5 will incur a (2-year) ADSO. 10. The National Defense Authorization Act of Fiscal Year 2005 (beginning 1 October 2005) terminated the requirement for certain officers to complete 6 years in a Reserve Component for eligibility for nonregular retired pay. The change was retroactive to 26 April 2005. DISCUSSION AND CONCLUSIONS: 1. There is no evidence to show that the applicant was denied promotion based on “a faulty application of regulations.” 2. The applicant stated that he could not accept the 2-year ADSO in March 2006 because the Army regulation requires a Reservist to serve the final 6 years of his 20 qualifying years as a Reservist in order to be eligible for a Reserve retirement. If he served the 2-year ADSO, he would have gone over that limit and lost his retirement. 3. The applicant’s contention that he was required to serve the last 6 years of his 20 qualifying years in a Reserve Component in order to be eligible for a Reserve retirement is noted. However, he could have retained his Reserve Component status had he accepted the promotion and applied for a short-term extension of his active duty commitment (instead of accepting a Regular Army appointment, which will soon be required of all officers on the ADL). 4. However, it is understood that the applicant still had personal reasons (losing his civilian job) that would have kept him from applying for the short-term extension and accepting the promotion. 5. In any case, a promotion is not meant to be a reward for good performance of duty carried out in the past. It is a recognition of potential for future performance in a higher grade. When an officer is selected for promotion by an ADL promotion board, it is reasonable for the Army to expect that officer to commit him/herself to a certain period of time on active duty. In this case that period of time was 2 years, and the applicant did not have that retainability. 6. Nevertheless, the applicant’s contention that he was harmed by this situation has some validity. 7. The applicant proved himself to be highly competitive for promotion by being selected for promotion to CW3 in competition with ADL warrant officers who had always been on active duty. He was then selected for promotion to CW3 by the first Reserve Component CW3 promotion board for which he was eligible for consideration after he came off active duty in September 2006. It is reasonable to presume that had he not been placed on the ADL when he came on active duty in September 2003, had he instead remained in the Reserve promotion system, that he would have been selected for promotion by the Reserve Component CW3 board that convened in 2006. 8. Following the above presumption, the applicant’s orders would have been issued in sufficient time for him to be promoted to CW3 with a DOR of 30 April 2007 and an effective date of 30 April 2007, the date he met the mandatory service requirements and promotion eligibility requirements. 9. Based upon the facts and presumptions noted in paragraphs 7 and 8, above, it would equitable to correct the applicant’s 2003 active duty orders to show he was not placed on the ADL but remained in the Reserve promotion system instead, and that he was considered and selected for promotion by the 2006 Reserve Component CW3 promotion board, and that he was promoted to CW3 with a DOR and an effective date of 30 April 2007. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __kan___ __jam___ __sap___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. amending his 14 January 2003 active duty orders to delete the words, ”…and placed on the active duty list in the grade of WO2 in accordance with (IAW) AR 135-101. DOR TBD after EAD IAW AR 624-100. Early…” and substituting instead the words, “…and will remain in the Reserve promotion system. Early…;” b. showing he was considered and selected for promotion by the 2006 Reserve Component CW3 promotion board; and c. showing that he was promoted to CW3 with a DOR and an effective date of 30 April 2007. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his CW3 promotion date to 1 March 2006. __Kathleen A. Newman__ CHAIRPERSON INDEX CASE ID AR20070006142 SUFFIX RECON DATE BOARDED 20080212 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 131.04 2. 131.05 3. 4. 5. 6.