PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 March 2003
	DOCKET NUMBER:   AR2002077278

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. William D. Powers		Member	
	Ms. Linda M. Barker		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 his promotion date to chief warrant officer two (CW2) be changed to coincide with his appointment in the Army National Guard (ARNG).

3.  The applicant states, in effect, that a misinterpretation of the governing regulation related to his transfer from the United States Army Reserve (USAR) to the ARNG resulted in his receiving an incorrect promotion date to CW2.  He states that he transferred from the USAR to the ARNG on 26 September 1997, and his ARNG unit commander immediately attempted to get him promoted.  The unit commander was told that in accordance with the governing regulation the applicant was not eligible for promotion for one year regardless of his time in grade because he had been appointed in the ARNG from an inactive USAR status.  However, the governing regulation stipulates that the USAR Control Group (REINF) is not considered as an inactive status.  

4.  The applicant further states that the orders transferring him from the USAR to the ARNG clearly show that he was assigned to the USAR Control Group (REINF), and this simple misinterpretation of the regulation resulted in delaying his promotion.  He also states that he is seeking to have his promotion date corrected in order to be eligible to retire as a CW4 rather than a very senior CW3. Finally, he claims that this correction seems to meet the fairness test, and that the Minnesota ARNG supports his request.  

5.  The applicant’s military records show that he was appointed a warrant officer one (W01) in the Minnesota ARNG and granted Federal Recognition on 8 August 1997.  It also confirms that he was promoted to CW2 and granted Federal Recognition in that rank on 12 August 1998.  

6.  Orders C-09-740781 authorized the applicant’s release from the USAR and transfer to the ARNG, effective 26 September 1997.  These orders confirm that the applicant was serving in and released from the USAR Control Group (REINF) at the time of his transfer to ARNG.  These orders were amended by Orders
C-09-740781A01, which changed the effective date to 7 August 1997. 

7.  In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Personnel Division, National Guard Bureau (NGB).  This opinion confirms that the applicant’s record shows that he was accessed into the ARNG from the USAR Control Group (REINF).  It further states that while the governing regulation prohibits promotion for one year for anyone accessed into the ARNG from an inactive status, it also stipulates that the USAR REINF is not considered an inactive status.  Therefore, if the regulation had not been misinterpreted at the time of the applicant’s appointment in the ARNG, he would have been appointed and promoted to CW2 on the same day.  

8.  The NGB advisory opinion also contains a recommendation that the applicant’s request for an adjustment to his CW2 date of rank be approved based on the cited misinterpretation of the regulation.  A review of the applicant’s record also reveals that the original USAR release orders were amended to read effective 7 August 1997 instead of 26 September 1997.  Taking this into account, the date of the applicant’s appointment in the ARNG and promotion to CW2 should be 8 August 1997.  This date coincides with the effective date of the Minnesota ARNG appointment orders and the Oath of Office, which both were effective 8 August 1997.  Therefore, it is recommended that the applicant’s CW2 date of rank be adjusted to 8 August 1997, which would allow for his promotion to CW3 on 8 August 2002, and to CW4 on 8 August 2007, well ahead of his Mandatory Removal Date (MRD).

9.  On 16 December 2002, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond.  On 24 December 2002, he provided his concurrence with the favorable NGB advisory opinion.  

CONCLUSIONS:

1.  The Board notes the applicant’s request that his CW2 date of rank should be corrected and it finds this claim has merit.  

2.  By regulation, service in the USAR Control Group (REINF) is not considered an inactive status for promotion purposes upon transfer into the ARNG.  The evidence of record confirms that the applicant was transferred into the ARNG from the USAR Control Group (REINF).  

3.  As confirmed in the NGB, because he was not transferred into the ARNG from an inactive status as defined by the regulation, the applicant was eligible to be promoted to CW2 on 8 August 1997, the same day he was appointed in the ARNG.  Therefore, the Board concludes that it would be appropriate to correct the applicant’s record to show he was appointed in the Minnesota ARNG and promoted to CW2 on 8 August 1997, and that he was granted Federal Recognition in conjunction with this appointment.  

4.  In addition, the Board concludes that it would be appropriate for the Adjutant General of the State of Minnesota to determine if the individual concerned is eligible and qualified for promotion to CW3 and to advance him to that rank, effective 8 August 2002 if he meets all established promotion eligibility criteria.

5.  Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that insofar as the Department of the Army is concerned, it would be in the interest of justice to correct the ARNG records of the individual concerned as recommended below.

RECOMMENDATION:

1.  Insofar as records of the Minnesota Army National Guard are concerned, the Board recommends that The Adjutant General of the State of Minnesota correct the records of the individual concerned by:

a.  showing that he was promoted to the rank of CW2, effective 8 August 1997; 

b.  determining if he is eligible and qualified for promotion to CW3, and if he meets all established promotion eligibility criteria, by promoting him to CW3, effective 8 August 2002; and 

c.  correcting his pay records based on the corrections made as outlined in a and b above.

2.  That the Chief of the National Guard Bureau grant the individual concerned Federal Recognition in the grade of CW2, effective 8 August 1997.

3.  That the individual concerned be provided all back pay and allowances due as a result of the corrections made by The Adjutant General of the State of Minnesota as outlined in paragraph 1 above.  

BOARD VOTE:  

__RJW__  __WDP _  __ LMB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_  Raymond J. Wagner  ._
		       CHAIRPERSON

INDEX

CASE ID	AR2002077278	
SUFFIX		
RECON		
DATE BOARDED	2003/03/04	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.  310	131.0000	
3.		
4.		
5.		
6.