IN THE CASE OF: BOARD DATE: 13 August 2013 DOCKET NUMBER: AR20120016829 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests adjustment of his date of rank as a chief warrant officer two (CW2). 2. The applicant states that, on 10 November 2011, when he became eligible for promotion to CW2, he was assigned as a rear detachment commander for an aviation unit. He was not in the correct position to be promoted. He was transferred to a demobilizing unit, but was told he could not be promoted there. He was then transferred into another rear detachment, but was again told he couldn't be promoted in a rear detachment. Finally, he was transferred to a table of distribution and allowances (TDA) unit and his promotion packet was submitted. By the time the promotion order was published, it was nine months past his promotion eligibility date. The two orders show the unit transfers. 3. The applicant provides copies of Maryland Army National Guard (MDARNG) Orders 336-035, transfer orders effective 2 December 2011; MDARNG Orders 102-112, transfer orders effective 11 April 2012; and his Officer Record Brief. CONSIDERATION OF EVIDENCE: 1. The applicant, a career ARNG noncommissioned officer and an Active Guard Reserve (AGR) supply specialist, attended Warrant Officer Candidate School and was appointed a WO1 with a date of rank of 10 November 2009. 2. He was eligible for promotion when he reached the 2-year time in grade requirement based on the date of his initial Federal recognition, 10 November 2011. 3. His record contains MDARNG Orders 230-089 transferring him to the Property Accounting Technician position, Headquarters and Headquarters Company, 29th Aviation Brigade (Rear) effective 15 August 2012. 4. During the processing of this case an advisory opinion was obtained from the National Guard Bureau (NGB). The Chief, Personnel Policy Division observed that the applicant was not serving in a qualified position when his promotion eligibility date arrived. A qualified position would have become available when his unit redeployed but the individual then in that position was entitled/required to undergo "Yellow Ribbon" transition requirements. There were also administrative delays that were beyond the applicant's control. The Chief, Personnel Policy Division noted that the MDARNG had requested the applicant's promotion effective date be changed to 2 December 2011. However, he failed to mention what justification was offered for that date. Nevertheless, he recommended correction of the applicant's promotion effective date to 2 December 2011. 5. The advisory opinion was provided to the applicant. To date, no response or rebuttal has been received. 6. Army Regulation 135-155 (Appointment of Commissioned and Warrant Officers) provides in paragraph 4-15c, "…commissioned officers and warrant officers serving in an AGR status. Officers serving on AD in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer (emphysis added). Effective date of promotion of AGR officers will be as shown in paragraph 4-21. AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action. AGR officers will remain on the promotion list and serve on AD in the AGR program until they are: (1) Removed from the promotion list under paragraph 3-18; (2) Promoted to the higher grade following assignment/ attachment to an AGR position calling for the higher grade; or (3) Promoted to the higher grade, if eligible, following release from AD. DISCUSSION AND CONCLUSIONS: 1. The governing regulation is quite clear – an AGR officer may only be promoted into a vacant position calling for the higher rank. 2. Notwithstanding the NGB recommendation there is no available evidence that the applicant was assigned or attached in a qualified position on 2 December 2011. Absent evidence showing that the applicant was transferred into a unit position calling for a CW2 his date of rank should not be changed. 3. The applicant has submitted neither probative evidence nor a convincing argument in support of the request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120016829 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120016829 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1