PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 March 2003
         DOCKET NUMBER: AR2002079530


         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:

Ms. Joann H. Langston		Chairperson
Mr. Raymond V. O’Connor		Member
Ms. Eloise C. Prendergast		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 chief warrant officer three (CW3) date of rank (DOR) be adjusted to 7 September 1997.

3. The applicant states, in effect, that that while holding the rank of chief warrant officer two (CW2), and working as an excepted technician for the Mississippi Army National Guard (MSARNG), a warrant officer one (W01) was assigned as his immediate supervisor. He claims this action was taken with the approval of the MSARNG headquarters. He claims that on 7 September 1997, he became eligible for promotion to CW3, but he was informed in writing that if he accepted the promotion, his civilian position would be terminated because it would be in violation of National Guard Regulation (NGR) 600-25. In January 2001, his new immediate supervisor, a lieutenant colonel (LTC), allowed his promotion to CW3 in March 2001. He claims that he should have been promoted on 7 September 1997, and now requests an adjustment to his CW3 DOR on that basis.

4. The applicant further states that while working as a full time technician at Camp McCain, Elliott, Mississippi, he applied for a CW2 position. However, this position was filled by an individual who held the rank of W01, who was given the supervisory responsibility for 5 members ranging in grade from master sergeant (MSG) through CW2. He claims that at that time, he informed the Superintendent, a colonel, that placing this individual in the supervisory position over him was a violation of NGR 600-25. The Superintendent conferred with Human Resources personnel of the MSARNG, and subsequently informed him that this regulation had no bearing on warrant officers, and it was permissible for him to be supervised by a W01. He first line supervisor was promoted to CW2 in March 1996, and he became eligible for promotion to CW3 on 7 September 1997. At that time, he received notification from the Personnel Director that if he accepted the promotion, it would violate the regulation and result in his termination as a full-time technician. He indicates that he was finally informed that he did have the option of applying for another position.

5. The applicant further states that he did not apply nor was he hired to work under a lower graded supervisor, and that in fact the lower graded individual was selected for the position over him, and this created the grade inversion situation. He claims that he had nothing to do with creating the situation, and the problem was the result of higher headquarters ignoring the regulation. In December 1999, a new superintendent was assigned, and at that time he was reassigned to work under a LTC, which eliminated the grade inversion problem and allowed him to be promoted. He now requests that his CW3 DOR be adjusted to
7 September 1997, the date he would have been promoted had it not been for the grade inversion problem, which will assist him in attaining his goal of becoming a CW4 before reaching his retirement age.

---

6. The applicant’s military records show that at the time of his application to the Board, he was still serving as a CW3 in the MSARNG.

7. On 7 September 1990, the applicant was appointed a W01 in the MSARNG. On 7 September 1992, he was promoted to CW2, and on 1 March 2001, he was promoted to CW3.

8. On 22 October 1997, the Personnel Officer of the MSARNG published a memorandum informing the applicant that although he was eligible for promotion to CW3, this would result in a grade inversion situation which would violate NGR 600-25 (Military Technician Capability), and that military compatibility was a condition of employment in his present technician assignment. The applicant was further notified that if he were promoted to CW3, his technician employment would be terminated 30 days after the effective date of promotion.

9. In a 27 October 1997 e-mail, the applicant’s supervisor was advised that the grade inversion problem had been addressed with the general who had not yet made a decision where the MSARNG was going. In this message, the applicant’s supervisor was asked to advise the applicant to “hang on for now, don’t rock no boats, and let’s see what the results is going to be before we panic.”

10. In connection with the processing of this case, an advisory opinion was received from the Chief, Personnel Division, National Guard Bureau (NGB). It contains the recommendation that the applicant’s application be denied because he failed to exhaust administrative remedies and to timely file. It further states that the grade inversion situation faced by the applicant is addressed in the governing regulation and he should have raised the questions he now raises at the time. The regulation also provides for relief from these situations when they are beyond the control of the technician, specifically it allows for the submission of waivers, which would have been the logical course for the applicant to follow at the time. This NGB official further states that the proper course for the applicant to follow was to follow the waiver procedures provided for by the regulation in order to receive a satisfactory decision rendered by the proper authority at the time of the perceived injustice. Instead the applicant elected to accept the circumstances for 3 years and 7 months, until he was promoted.

11. The applicant was provided a copy of the NGB advisory opinion and he provided a response on 27 February 2003. In this reply, the applicant indicates that he did raise questions at the time of the original grade inversion, and he was informed that grade inversion was not illegal for warrant officers. He further states that he was informed that his acceptance of his promotion would result in the termination of his technician employment and when he contacted higher headquarters, he was told not to rock the boat.

---

12. The applicant also claims that he was never offered the option to submit a waiver and had he been aware of these provisions, he of course would have submitted the waiver request at the time. He states that at the time his promotion to CW3 was due, he exercised all the options he thought were available to him. In fact, he indicates that was told by the Inspector General (IG) that this is the price you sometimes have to pay for full time employment. He was also told by members of his chain of command not to rock the boat, but they never provided other alternatives or advise on other avenues of redress for him to pursue the issue. He further claims that every time he attempted to address the issue, he hit a brick wall. He comments that it was his belief that he had exhausted all administrative remedies that were made available to him at the time, and he was only removed from the grade inversion situation when a new superintendent was appointed in December 1999. He indicates that he did not accept the circumstances that delayed his promotion for 3 years and 7 months, but rather he actively pursued all avenues of correcting the situation that he was aware of at the time, while still adhering to proper military protocol by not going outside of channels. He states that had the new superintendent not taken the proper action on his behalf, he would still not have his promotion. The superintendent also offered him advice on pursuing a DOR correction and provided the enclosed memorandum supporting his application to this Board.

13. National Guard Regulation 600-25, effective 31 March 1995, prescribes
the policies, procedures, and responsibilities governing Army and Air National Guard technician compatibility criteria. Paragraph 2-1 provides guidance on position assignments, and it states that military grade inversion within the full time workforce is not permitted. Paragraph 2-2 contains implementing instructions and it required States to implement an NGB approved plan to achieve 100 percent compliance with the requirements of the regulation.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he was unjustly denied promotion to CW3 because MSARNG authorities failed to follow technician compatibility criteria established in the governing regulation, and it finds this claim has merit.

---

2. The evidence of record confirms that contrary to the existing regulation, MSARNG took a technician hiring action that resulted in the applicant being assigned a supervisor junior in military rank, which created a grade inversion situation.

3. The record further shows that when the applicant became eligible for promotion to CW3 in 1997, MSARNG officials informed him that he could not be promoted because it would cause a grade inversion situation. He was further advised that if he accepted the promotion, his civilian technician employment would be terminated within 30 days because military compatibility was a condition of his civilian employment.

4. The evidence also shows that the applicant attempted to resolve this situation through his chain of command and he was advised that the situation was being addressed and not to pursue other alternatives. There is no indication that the applicant was advised on procedures for requesting a waiver by command personnel officials and there is no evidence to suggest that the command was willing to reveal its difficulties in complying with the established grade inversion policy.

5. The Board understands the position taken by NGB officials given almost four years passed before the applicant raised the issue outside his chain of command. However, it does not believe this is the overriding factor in this case. The Board does not find it is reasonable to presume that the applicant had the ability to deal with this situation at the time. It is clear that the chain of command was trying to deal with its grade inversion problems internally, and in fact the applicant was advised not to pursue the issue.

6. In the opinion of the Board, MSARNG officials failed to properly address its grade inversion problems at the time, and the applicant’s chain of command was either unaware of waiver procedures or were not willing to address the issue outside the State . Thus, the Board concludes that the failure of State officials to follow established regulatory technician compatibility criteria resulted in an injustice being served on the applicant through no fault of his own.

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

---

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by adjusting the CW3 DOR of the individual concerned to 7 September 1997
vice 7 March 2001, his current CW3 DOR.

BOARD VOTE:

___JHL__ __RVO__ __ECP__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Joann H. Langston__
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002079530
SUFFIX
RECON
DATE BOARDED	2003/03/27
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.
3.
4.
5.
6.