PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002072226


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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.

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2. The applicant requests reconsideration of his previous application to correct his military records by reinstating him to the rank of chief warrant officer five (CW5) effective 1 April 1999, or as an alternative, that he be placed on the Retired List in the rank of CW5 with entitlement to all back pay and allowances.

3. The applicant states, in effect, that he was promoted to the rank of CW5 and served in that rank for 2 ½ years before it was revoked. He further states that his promotion was revoked because he was not educationally qualified for his position at the time of promotion, however, he was never made aware that his promotion was conditional on his completion of the course. He further states that he has since discovered that he should not have been administratively reduced and that he should have been reassigned to a position commensurate with his rank because there are no provisions under law to effect an administrative reduction unless by reason of misconduct. Additionally, he successfully served in the rank of CW5 and as a minimum, should have been placed on the Retired List in that rank.

4. The Memorandum of Consideration (MOC) of the Board’s 18 September 2001 review of the case (AR2001056262) is incorporated herein by reference as if wholly set forth.

5. The applicant’s submission is new evidence and/or argument that requires Board consideration.

6. The applicant was inducted in Des Moines, Iowa, on 27 February 1968 and served in an enlisted status until he was honorably discharged on 27 July 1969, to accept an appointment as a United States Army Reserve (USAR) warrant officer one (WO1) aviator, with a concurrent call to active duty. He was appointed as a WO1 on 28 July 1969 and served on active duty until 25 December 1970, when he was released from active duty (REFRAD) and was transferred to the USAR Control Group (Annual Training).

7. He accepted an appointment in the Iowa Army National Guard (IAANG) on 21 August 1975 and served with the IAANG until 5 February 1980, when he transferred to the Minnesota Army National Guard in the rank of chief warrant officer three (CW3). He was promoted to the rank of chief warrant officer four (CW4) on 18 October 1984.

8. On 1 April 1994, he was ordered to active duty for a period of 3 years in the Active Guard/Reserve Program (AGR). He was transferred to Fort Belvoir, Virginia for duty as a property book officer in military occupational specialty (MOS) 2210. On 30 September 1995, he was transferred to a new position at Fort Belvoir, to serve as a tactical operations officer in MOS 2210.


9. On 7 March 1996, the applicant was eliminated from the fixed wing multi-engined qualification course (MOS 155E) at Fort Rucker, Alabama, for failure to achieve course standards.

10. On 26 July 1996, he completed the Warrant Officer Senior Staff Course at Fort Rucker. He returned to Fort Belvoir and continued his duties as a tactical operations officer in MOS 155E (fixed wing aviator).

11. On 10 October 1996, orders were published by the National Guard Bureau (NGB) in Washington, D.C. that promoted the applicant to the rank of CW5 in MOS 155E, effective 21 August 1996. The applicant did not possess MOS 155E; however, he was promoted to the rank of CW5 effective 21 August 1996.

12. On 27 April 1997, he was transferred to a position of a systems analyst in MOS 2631 and on 1 April 1999, he was transferred to the position of executive officer at the Operations Division of the Army National Guard Readiness Center in Arlington, Virginia.

13. He served as a CW5 and received excellent evaluation reports while serving in that rank. However, on 27 March 1999, the National Guard Bureau (NGB) sent the applicant a memorandum informing him that his promotion was conditional on his completing the fixed wing multi-qualification course and obtaining MOS 155E. He was further informed that since he did not complete the course, he was ineligible to accept the promotion and it was therefore revoked. He was also informed of the regulatory provisions requiring individuals to be MOS qualified before being eligible for promotion consideration and was informed that once he obtained a position for which he was MOS qualified, he would be reconsidered for promotion. He was informed that no restitution of any pay or allowances would be required. His promotion was revoked on 1 April 1999.

14. On 31 May 2001, he was honorably released from active duty and was transferred to the Retired List in the rank of CW4, effective 1 June 2001. He had served 20 years, 8 months and 13 days of total active service and had 33 years, 3 months and 3 days of total service for pay purposes.

15. National Guard Regulation 600-101 prescribes policies and requirements for Federal Recognition of promotion of warrant officers in the Army National Guard. It provides, in pertinent part, that in order to be eligible for promotion to the next higher grade, warrant officers who are assigned to a position in a MOS for which they have not been certified, must complete MOS training/certification in the duty MOS within 3 years of assignment or 2 years from the start date of training, whichever comes first. Promotion will be based on a sound level of technical and tactical competence, time-in-grade, military education, progressive levels of expertise and leadership, and potential for service at the next higher grade. Promotion will not be a reward for past performance. All warrant officers must be fully qualified for the position they occupy in accordance with the applicable regulatory guidelines at the time the promotion is accepted.

16. Title 10, U.S. Code, section 1371, provides, in effect, that a warrant officer retires, as determined by the Secretary concerned, in the permanent Regular or Reserve warrant officer grade, if any, that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he satisfactorily served on active duty, as determined by the Secretary, for a period of more than 30 days.

17. Army Regulation 135-18 established policies and procedures for administering and separating members of the AGR Program. It provides, in pertinent part, that AGR personnel serving in positions for which they are over graded and those pending promotion will be reassigned or reattached, if eligible for such reassignment or reattachment on a priority basis.

18. National Guard Regulation 635-100 prescribes the policies and procedures governing the separation of commissioned officers of the Army National Guard. It provides, in pertinent part, that unless discharged as a Reserve of the Army, an officer of the Army National Guard of the United States becomes a member of the Army Reserve when Federal recognition is withdrawn.

CONCLUSIONS:

1. After reconsidering the evidence in this case as well as the applicant’s new argument, the Board concludes that the applicant was not fully qualified to accept the promotion to the rank of CW5.

2. Although the Board can find no specific language in the available evidence indicating that his promotion to the rank of CW5 was conditional upon his successful completion of a MOS-producing course of instruction, the order that directed his promotion specified that he was being promoted in MOS 155E, the MOS of a fixed wing aviator. The applicant never completed the training and was never awarded the MOS of the position for which he was serving and for which he was promoted.

3. The Board has noted the applicant’s contention that the NGB had no authority to administratively reduce him once he was promoted and finds it to be without merit. At the time the applicant accepted his promotion to the rank of CW5, the promotion was conditional on his being in a fully promotable status. In order for the applicant to be in a fully promotable status, he had to be qualified in the specialty for which he was being promoted. Accordingly, his promotion was never valid. While the term “administratively reduced” may not have been the correct term to use, the effect of being returned to the rank of CW4 was the same.

4. The Board has also noted the applicant’s contention that he should have been transferred to a position commensurate with his rank and specialty or transferred to the USAR. In this regard, the Board reiterates that the applicant was promoted to the rank of CW5 in an MOS he did not hold, accordingly, he could not be transferred to another job in a specialty he already held because the promotion was tied to the MOS. In regards to his transfer to the USAR, the Board finds no evidence to suggest that the applicant ever wanted, requested or inquired into such a transfer. As such, he was able to remain on active duty long enough to qualify for an active duty retirement and the Board views this error as being beneficial to the applicant rather than as a detriment.

5. Notwithstanding that the applicant was not fully qualified in the MOS for which he accepted the promotion, he did serve successfully in the rank of CW5 from 10 October 1996 until 1 April 1999, when his promotion was revoked. He received the benefits of that promotion while he served in that grade and the Board finds that he should have been REFRAD in the rank of CW4 on 31 May 2001 and placed on the Retired List in the rank of CW5, effective 1 June 2001, the highest grade he satisfactorily served in, with entitlement to all back pay and allowances from that date.

6. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was placed on the Retired List in the rank of CW5, effective 1 June 2001, with entitlement to all back pay and allowances from that date.

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

BOARD VOTE:

__fe____ __ja ____ __cc ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __ Fred N. Eichorn __
                  CHAIRPERSON

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INDEX

CASE ID	AR2002072226
SUFFIX
RECON
DATE BOARDED	2002/12/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 306	129.0400/HI GRD HLD
2.
3.
4.
5.
6.