IN THE CASE OF:	  

		BOARD DATE:	       28 October 2008

		DOCKET NUMBER:  AR20080010720 


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 that he be promoted to pay grade W-4 with a date of rank and an effective date of 24 October 2006 and authorized back pay.

2.  The applicant states, in effect, that he was penalized by volunteering for deployment with a unit.  He voluntarily gave up his AGR (Active Guard Reserve) position to be deployed with an Ohio Army National Guard (OHARNG) unit.  Although the unit needed his skills and abilities, they did not have an open position for him.  He was simply placed into a vacant slot for which he was over qualified.  He was an aviator in a slot with a military occupational specialty (MOS) for a ground maintenance officer.  This resulted in his not getting promoted in a timely manner. 

3.  The applicant provides copies of his deployment orders, MOS assignment orders, and emails and memos relating to requests for waiver of promotion eligibility requirements, in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Aviation Chief Warrant Officer Three (CW3), pay grade 
W-3, in the Army National Guard, was serving on active duty with the National Guard Bureau (NGB) in a Title 10, United Sates Code Active Guard Reserve (AGR) position in MOS 155E (Fixed Wing Aviation Pilot).  His date of rank was 24 October 2001.  

2.  He completed the Warrant Officer Staff Course on 31 March 2006 and was selected for promotion.

3.  He volunteered for deployment with an OHARNG unit.

4.  On 20 September 2006 the applicant was ordered to active duty as a member of a Reserve Component unit.  NGB issued follow-on orders indicating the applicant was released from attachment to the Operational Support Airlift Agency at Fort Belvoir, Virginia and was returned to the Joint Forces Headquarters, Ohio. He was to revert to the AGR program upon his release from mobilization. 

5.  NGB Special Orders Number 271 AR, dated 2 November 2007, extended the applicant Federal recognition for the purpose of promotion to CW4, effective
13 September 2007.
   
6.  The Deputy Chief of Staff for Personnel, OHARNG, in a 21 November 2006 memorandum to the NGB, reported that applicant had been placed into a "Derivative UIC" (unit identification code).  It reported that the applicant was qualified in two pilot MOS's but the State of Ohio had no vacant positions in either MOS.  Therefore the applicant had simply been placed into a vacant aviation position.  It was noted that upon return from deployment he would revert back to his AGR title 10 status and that there was to be a vacant, authorized position.  A waiver of the position assignment requirement was requested so that the applicant could be promoted. 

7.  A 3 July 2007 memorandum from the same OHARNG official reiterated the request for a waiver of the duty position requirement so that the applicant could be promoted.

8.  The Deputy Chief Reserve Component Division, Multi-National Corps-Iraq, in a 26 January 2008 memorandum, certified that the applicant had been fully qualified for promotion prior to his deployment.

9.  The Chief, NGB Aviation Operations and Training Branch explained, in a memorandum dated 8 April 2008, that he had been the Commander, Operational Support Airlift Command during that unit's deployment in support of Operation Iraqi Freedom.  He noted that, during the transition process, the applicant had been improperly assigned to a position that he was, technically not qualified to hold.  The State of Ohio had asked for a waiver so that the applicant could be promoted; however, the NGB had denied that request.  Ten months later, after much work had gone into explaining the situation, "the exact same request received favorable consideration…This resulted in [the applicant's] promotion occurring nearly one year late …[He remarked that] promoting Title 10 AGR 

Soldiers for deployment was relatively new at the time…[the applicant] paid the price for the growing pains of the Army as it developed policies and procedures …[the applicant] should receive back pay and adjustment…(to) 24 October 2006.

10.  In the processing of this case, on 1 July 2008, an advisory opinion was obtained from Chief, Personnel Division, NGB, who noted that the applicant had completed the Warrant Officer Staff Course, been selected for promotion, and attained the required 5 years time in grade requirement.  He recommended that the applicant's date of rank and effective date for CW4 be corrected to
24 October 2006 and that he be authorized all back pay and allowances.

11.  The NGB advisory opinion was forwarded to the applicant on 30 July 2008 and the applicant concurred.  He returned his response as an attachment to an email message in which he also pointed out that he had been deployed to Iraq during the period in question and that the pay would have been exempt from Federal income taxes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily went from active duty in a Federal AGR position to deployment with an OHARNG unit.  He had been selected for promotion to CW4 and was qualified for promotion on 24 October 2006.  He was not promoted because he was not in a qualifying slot.

2.  The NGB inadvertently failed to approve the request for MOS waiver for the slot that was created for the applicant.  The NGB now recommends that the applicant be promoted, effective 24 October 2006.

3.  The applicant should be promoted to CW4 with an effective date and a date of rank of 24 October 2006 and authorized all back pay and allowances, including those payable to a Solider deployed to Iraq.   

BOARD VOTE:

____X___  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

   a.  showing he was promoted to CW4 with an effective date and a date of rank of 24 October 2006;
   
   b.  amending Special Orders Number 271 AR, dated 2 November 2007, to show the applicant was extended Federal recognition for the purpose of promotion to CW4, effective 24 October 2006; and
   
   c.  authorizing all back pay and allowances, including those payable to a Soldier deployed to Iraq, as a result of the above corrections .



      _________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)                                         AR20080010720



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ABCMR Record of Proceedings (cont)                                         AR20080010720



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