RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060009567 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan A. Powers

Member

Mr. Qawiy A. Sabree

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, in effect, correction of his chief warrant officer two (CW2) date of rank (DOR) and promotion eligibility date (PED), from
20 December 2005 to 24 May 2004, and payment of all pay and allowances resulting from the correction.

2.  The applicant states, in effect, that there was a gross administrative error in the submission of the predetermination of his military occupational specialty (MOS) qualifications.  He also states, in effect, that he should have been pre-determined to all qualifying MOS' and, with his previous grade of rank, should have been accepted in the Army National Guard (ARNG) as a CW2.

     a.  The applicant states that in accordance with National Guard Regulation (NGR) 600-101, paragraph 2-10b, a former commissioned officer who served a minimum of 2 years in an active status in the grade of rank of captain (CPT)/pay grade O-3 or above with 4 years experience in the appointment specialty may be appointed to CW2.  He also states that he had over 15 years (10 years active) of military experience holding the grade of rank of lieutenant commander/pay grade O-4 for over 4 years as a designated Naval Fixed-wing and Rotary-wing Aviator.

     b.  The applicant sates, in effect, that there was a gross error and negligence in the submission of paperwork within the chain-of-command leading up to his acceptance into the Colorado ARNG (COARNG).  He also states, in effect, his initial pre-determination should have been on all MOS' he was qualified to hold (i.e., MOS 155A, Fixed Wing Aviator (Aircraft Nonspecific) and MOS 153A, Rotary Wing Aviator (Aircraft Nonspecific)) and not limited to a specific MOS.  The applicant further states that the memorandum prepared by the battalion adjutant that documents his qualifications identifies him with the wrong rank
(i.e., lieutenant) and only addresses his qualifications for the potential fill of a UH-60 position (i.e., MOS 153D).  He also states the memorandum was misconstrued by the Officer Branch and produced a limited predetermination to the National Guard Bureau (NGB) for MOS 153D (UH-60 Pilot).

     c.  The applicant also states, in effect, the Officer Branch, NGB, recognized the past error and started a new process to predetermine his qualifications to include all qualified MOS.  The applicant adds that the Director, Aviation Personnel Proponency, Fort Rucker, Alabama, determined his eligibility for MOS 153A.  This was at the same time of his original request for appointment into the COARNG, when there were MOS 153A vacancies for which he was fully eligible to have been appointed to as a CW2, if the correct paperwork had been submitted.
     d.  The applicant concludes by stating, in effect, that within 6 months of May 2004 he completed the Qualification Course for the UH-1 and then completed the C-26 Qualification Course less than a year later.  He adds that he was promoted to CW2 by a special promotion board in January 2006.  However, based on his predetermined qualifications, he believes his DOR for CW2 should be corrected to the date the Director, Aviation Personnel Proponency, Fort Rucker, Alabama, determined his eligibility for MOS 153A.

3.  The applicant provides a self-authored letter, a copy of Headquarters, Colorado ARNG (COARNG), Buckley Air Force Base, AVN-BN-S1,Aurora, Colorado, memorandum, dated 26 March 2004, subject:  Qualifications of LT T_____ P. M________; Headquarters, Department of Military and Veterans Affairs, CO-DPER-OFF, CO ARNG, Centennial, Colorado, memorandum, dated 22 July 2005, subject:  Reclassification for WO T_____ P. M________ - 153A - 155A; Headquarters, U.S. Army Aviation Center (USAAVNC) and Fort Rucker, Fort Rucker, Alabama, memorandum, dated 24 May 2004, subject:  Determination of Eligibility (M________, T_____ P., LtCdr (USNR), [Social Security Number]; and State of Colorado, Department of Military and Veterans Affairs, Centennial, Colorado, letter, dated 5 April 2004, subject:  Aviator Assessments.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he was commissioned and entered active duty in the U.S. Navy (USN) on 15 October 1988.  The applicant served on active duty in the USN as an aviation officer, attained the grade of rank of lieutenant (LT)/pay grade O-3, and was honorably released from active duty on 31 May 1998.  The applicant's records show that he continued to serve in the USN Reserve and attained the grade of rank of lieutenant commander (LCDR)/ pay grade O-4.

2.  The applicant's military service records contain a NGB Form 62-E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States), undated, completed and submitted by the applicant.  This document shows that the applicant applied for Federal recognition as a WO1 in the COARNG and, in pertinent part, shows that he completed the HSL-40 (H-60 Replenish Squadron), SH-60B Course, in June 1991, and was granted SH-60B rating.  This document also shows, in pertinent part, that the Commander, 2nd Squadron, 135th Aviation Battalion, Buckley Air Force Base, Aurora, Colorado, recommended approval of the applicant's appointment to fill the position of UH-60 Pilot, paragraph 202, line 04. 
3.  The applicant's military service records contain a NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 2 June 2004, that shows the applicant was found qualified for appointment as a WO1, UH-60 Pilot (MOS 153D), with the educational stipulation imposed by the Board that the applicant complete the UH-60 Transition Course.  This document also shows, in pertinent part, that the Board recommended promotion of the applicant to CW2 upon completion of the UH-60 Transition Course.

4.  On 10 June 2004, the applicant was administered his Oath of Office for appointment as a warrant officer one (WO1) in the COARNG and was granted temporary Federal recognition in the grade of WO1.

5.  In connection with the processing of this case, the Board requested and received an advisory opinion from the Chief, National Guard Bureau, Personnel Division, ARNG Readiness Center, Arlington, Virginia.  The NGB advisory recommends that the applicant's CW2 DOR be adjusted to 20 November 2004 (vice 24 May 2004) based on the date he completed MOS Qualification (MOSQ) for MOS 153D.

     a.  The advisory official states that, on 30 April 2004, the NGB, Personnel Policy and Readiness Division, sent a memorandum to the Commandant, USAAVNC, Fort Rucker, Alabama, requesting a review of the applicant's application and predetermination for appointment as a warrant officer and certification in MOS 153D.

     b.  On 24 May 2004, the Director, Aviation Personnel Proponency (Dir, APP), USAAVNC, Fort Rucker, Alabama responded stating that the applicant was qualified and met the technical prerequisites for MOS 153A (Rotary Wing Aviator).  The Director, APP, USAAVNC, also stated that, upon completion of the UH-60 Transition Course at Fort Rucker, Alabama, the applicant will be awarded MOS 153D.  The Chief, Personnel Policy and Readiness Division (PP&RD), NGB approved the applicant for appointment as a WO1 in MOS 153D and advised that for certification he must successfully complete the UH-60 Transition Course within 2 years of his appointment as a warrant officer.  The Chief, PP&RD, also advised the applicant that he would be eligible for promotion to CW2 once he completes the requirement for MOS certification.

     c.  The NGB advisory official states that the applicant's DA Form 62-E was approved for the applicant to be appointed as a WO1 in MOS 153D, effective
10 June 2004 and he was administered the Oaths of Office on 10 June 2004. Federal recognition, Special Order Number 185 AR, dated 27 July 2004, was published promulgating the applicant's initial appointment into the COARNG as a WO1, effective 10 June 2004.
     d.  The NGB advisory official offers that the applicant completed the UH-1 Aviator Qualification Course on 20 November 2004.   On 22 July 2005, the COARNG requested the applicant's reclassification from MOS 153A to MOS 155A and added that the initial request for predetermination of the applicant should have asked for all MOS he was qualified to hold.

     e.  The NGB advisory official adds that on 20 December 2005, Headquarters, Fifth U.S. Army, approved the applicant's reclassification into MOS 155A and promotion to CW2.  Federal recognition, Special Order Number 8 AR, dated
12 January 2006, was published promulgating the applicant's reclassification into MOS 155A and promotion to CW2, effective and with a DOR of 20 December 2005.

6.  On 26 January 2007, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond.  On 31 January 2007, the applicant provided his rebuttal to the advisory opinion.  The applicant states, in effect, that before taking his oath of office he questioned the appointing officer about being appointed as a WO1 rather than CW2 in view of his 11 years of both fixed-wing and rotary-wing flying experience.  The applicant states, in effect, that he was given a verbal promise that the matter would be rectified by getting him into an Aviation Qualification Course within the next few months.  However, he later learned that the next available course was in 13 months.  It was at this point that he was told his request for initial appointment into the COARNG should have been in MOS 153A, since the USAAVNC found that he met the qualifications and technical proficiencies for that MOS on 24 May 2004 and the COARNG had four different aircraft they needed pilots for at that time.  The applicant states that in order to rectify the mistake, he enrolled in the first available UH-1 Aviation Qualification Course and was awarded MOS 153D (UH-60 Pilot).  The  applicant concludes by stating that he understands the NGB advisory opinion, and respectfully requests that, if his records can not be corrected to show 24 May 2004 as his CW2 DOR, then he requests consideration of the date of his oath of office (i.e., 10 June 2004) for his corrected CW2 DOR.

7.  The Department of Navy, Naval Historical Center, Washington, DC, Internet website shows, in pertinent part, that the SH-60B Seahawk evolved from the Sikorsky-built UH-60A Black Hawk which is operated by the Army.

8.  National Guard Regulation (NGR) 600-101, paragraph 2-10b(1) and (3), states that commissioned and former commissioned officers who have served a minimum of two years in an active status in the grade of O-3 or above and have a minimum of four years experience in the appointment specialty may be appointed to CW2 if certified by the MOS proponent.  Commissioned officers predetermined to be only qualified for entry into the Warrant Officer training program, will be initially appointed in the grade of WO1.  Commissioned officers may be considered for promotion to the grade of CW2 when certified by the MOS proponent, provided they served a minimum of two years in an active status in the grade of O-3 or above.

DISCUSSION AND CONCLUSIONS;

1.  The applicant contends, in effect, that his records should be corrected to show he was promoted to CW2 with an effective date and DOR of 24 May 2004 because there was administrative error in the submission of the predetermination of his MOS qualifications.  The applicant also offers, in effect, in light of the NGB advisory opinion, if his original request is not approved, his records should be corrected to show he was promoted to CW2 with an effective date and DOR of 10 June 2004 based on the date of his Oath of Office.

2.  The evidence of record shows that the applicant completed a NGB Form 62-E and applied for Federal recognition as a WO1 in the COARNG.  The evidence of record also shows that the applicant listed his USN active service and the service schools he completed on this form.  The evidence of record further shows that upon review of the applicant's NGB Form 62-E, the commander of the applicant's proposed unit recommended approval of the applicant's appointment to fill a
UH-60 Pilot position.  In addition, the evidence of record shows that in support of the unit commander's recommendation, the battalion adjutant amplified on the applicant's UH-60 qualifications.  The evidence of record fails to show that the applicant's proposed unit had vacant MOS 153A positions and that the applicant was recommended to fill a MOS 153A position at the time of his appointment. There is also no evidence of record that the applicant's aviation qualifications, that were provided by the applicant on the NGB Form 62-E, were not given due consideration by the applicant's (proposed) unit commander and chain of command or by NGB officials during the predetermination warrant officer appointment process.

3.  The evidence of record shows that the applicant is a former commissioned officer who has served a minimum of 2 years in an active status in the USN in the grade of O-3 and has a minimum of 4 years experience in the appointment specialty.  Therefore he was eligible to be appointed to CW2.  However, the evidence of record also shows that appointment to CW2 required certification by the MOS proponent (i.e., Commandant, USAAVNC).  The evidence of record further shows that the MOS proponent stipulated that the applicant required the UH-60 Transition Course in order to be certified for award of MOS 153D and promotion to CW2.  Therefore, the applicant was properly appointed in the grade of rank of WO1 on 10 June 2004.

4.  The evidence of record shows that the applicant met the educational stipulation imposed by the Federal Recognition Examining Board when he completed the Aviator Qualification Course on 20 November 2004.  Therefore, the applicant was eligible to be promoted to the grade of rank of CW2/pay grade W-2 on 20 November 2004.

5.  In view of the foregoing, the applicant’s records should be corrected to show he was promoted to the grade of rank of CW2/W-2, effective and with a DOR of 20 November 2004.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___JI ___  ___SAP _  ___QAS_  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 showing the applicant was:

     a.  promoted to the grade of rank of CW2/pay grade W-2, effective and with a DOR of 20 November 2004; and

     b.  granted Federal recognition of his promotion to the grade of rank of CW2/ pay grade W-2, effective and with a DOR of 20 November 2004.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of the correction.

3.  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 promotion to CW2, effective 24 May 2004 or 10 June 2004.




_____John Infante______
          CHAIRPERSON




INDEX

CASE ID
AR20060009567
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/03
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
131.0500.0000
2.

3.

4.

5.

6.