IN THE CASE OF:	  

		BOARD DATE:	  12 March 2009

		DOCKET NUMBER:  AR20080017636 


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, in effect, that his Chief Warrant Officer Four (CW4) promotion and Federal Recognition effective date be corrected to reflect 
29 January 2008 vice 12 March 2008.  He further requests that he receive all pay and allowances to which he is entitled based on his corrected date of promotion. 

2.  The applicant states, in effect, that his promotion to CW4 was delayed due to excessive processing time by the Army Aviation Medical Center at Fort Rucker, Alabama for granting of a waiver and approving of his flight physical.  He states he was injured by the lipid controlling agent Crestor which was prescribed by a doctor at the Department of Veterans Affair (VA), which damaged his peripheral nerves, autonomic nervous system, muscle, connective tissues, hearing and memory.  He also states he was diagnosed with polyneuropathies and neuropsychological disorder, disqualifying him for all Army Aviation classes.  He further states he has retained counsel in this matter which has compromised his health, derailed his promotion, and nearly ended his military career of more than two decades.

3.  The applicant provides the following documents in support of his application:  Headquarters, 1st Battalion, 137th Aviation Regiment Memorandum, subject: Verification of Promotion Eligibility for (applicant), dated 26 September 2008; National Guard Bureau (NGB) Special Orders Number 214 AR, dated 19 August 2008; NGB Memorandum, subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 19 August 2008; DA Form 4186 (Medical Recommendations for Flying Duty), dated 23 July 2008; State of Ohio Adjutant General's Department, Orders 154-651, dated 2 June 2008; Application for Aviation Service Orders for Previously Designated Army Aviator, subject:  Request for Aviation Service Orders, dated 15 May 2008; Ohio Army National Guard (OHARNG) Memorandum, subject:  Sworn Statement Requesting Return to Aviation Service, dated 7 May 2008; OHARNG Orders 020-07, dated            20 January 2007; State of Ohio Adjutant General's Department, Orders 051-093, dated 20 February 2008; State of Ohio Adjutant General's Department, Orders 052-098, dated 21 February 2006; Headquarters, United States Army Aviation Center, Fort Rucker, AL, Orders 138-11, dated 20 July 1987; DD Form 2808 (Report of Medical Examination), dated 20 December 2007; DD Form 2807 (Report of Medical History), dated 15 May 2008; and the Selective Serotonin or Monoamine Reuptake Inhibitor Information Sheet, dated January 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the OHARNG. 

2.  NGB Special Orders Number 36 AR, dated 7 February 2002, extended the applicant permanent Federal Recognition for promotion to the grade of warrant officer three, effective 29 January 2002.

3.  The applicant's Official Military Personnel File (OMPF) contains a DA Form 1059 (Service School Academic Evaluation Report).  This document shows he completed the Warrant Officer Staff Course 06-04 on 31 March 2006.

4.  State of Ohio, Adjutant General's Department, Orders 225-063, dated 
12 August 2008, promoted the applicant to the rank of CW4, effective 31 July 2008.

5.  NGB Special Orders Number 214 AR, dated 19 August 2008, extended Federal recognition for the purpose of promotion to the grade of CW4, effective 31 July 2008.

6.  In connection with the processing of this case, an advisory opinion from the Acting Chief of the NGB Personnel Division was obtained.  This official stated the applicant had completed the Warrant Officer Staff Course on 31 March 2006 and that his DOR [date of rank] to CW3 was 29 January 2002.  The official further stated that based on the applicant's DOR to CW3 and his completion of the MTIG [minimum time-in-grade] of 6 years as required by National Guard Regulation 600-101, chapter 7, paragraph 9, Table 7-1, his promotion eligibility date to CW4 was established as 29 January 2008.  This official recommended that the applicant's effective date of permanent Federal Recognition for promotion to the grade of CW4 be amended to 29 January 2008, and that he receive all back pay and allowances owed as a result.  
7.  On 21 January 2009, the applicant concurred with the advisory opinion rendered in his case.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR). Section II provides guidance on promotion dates.  It states, in pertinent part, that 6 years in the lower grade are required for mandatory promotion to CW4. 

9.  National Guard Regulation 600-101 (Warrant Officers-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-2 states that the appointment of warrant officers is a function of the state concerned.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve warrant officers of the Army with assignment to the ARNGUS if they have not already accepted such appointment.

10.  Paragraph 2-3 of National Guard Regulation 600-101 states that temporary Federal Recognition may be extended to a warrant officer who has been appointed in the ARNG of a State and found to be qualified by a Federal Recognition Board pending final determination of eligibility and appointment as a warrant officer of the Army.  If not sooner withdrawn or replaced by the granting of permanent Federal Recognition, temporary Federal Recognition will automatically terminate six months after the effective date of State appointment.  However, should the initial period of temporary Federal Recognition expire due to administrative processing delays, through no fault of the member, a subsequent Federal Recognition Board should be convened to consider the request again and grant another new period of temporary Federal Recognition if warranted.

11.  Paragraph 2-3a of National Guard Regulation 600-101 states that temporary Federal Recognition may be granted by a Federal Recognition Board to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a Federally recognized unit of the Army National Guard.  The Federal Recognition Board will forward the NGB Form 89 and allied documents to the Adjutant General.  When the member is favorably recommended, the Adjutant General will endorse the packet to the NGB.  If the member meets the qualifications and requirements for Federal Recognition, the Chief, NGB extends permanent Federal Recognition to the member in the grade and branch in which the member is qualified.

12.  Paragraph 2-4b of National Guard Regulation 600-101, states that the effective date of Federal Recognition for original appointment is that date on which the warrant officer executes the oath of office in the State.  Paragraph 2-3 states that temporary Federal Recognition upon initial appointment establishes the authorized grade to be used by all officers in their federally recognized status. 

13.  Table 7-1 of National Guard Regulation 600-101 shows that the MTIG requirement for promotion to the grade of chief warrant officer four is 6 years in the lower grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CW4 should be adjusted to 
29 January 2008, was carefully considered and found to have merit.

2.  The evidence of record confirms the applicant successfully completed the Aviation Warrant Officer Staff Course on 31 March 2006, the military education requirement for promotion to CW4.  

3.  The evidence of record confirms the applicant's DOR to CW3 as 29 January 2002 and that based on the 6 year MTIG for promotion to CW4 his promotion eligibility date to CW4 was established as 29 January 2008.  However, through no fault of his own his promotion and Federal Recognition to CW4 was unjustly delayed.  Therefore, it would be appropriate and serve the interest of justice to correct his record to show he was promoted to and granted Federal Recognition as a CW4, effective 29 January 2008, and to provide him any back pay and allowances due as a result.

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 state Army National Guard records and Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  amending State of Ohio, Adjutant General's Department Orders 225-063, dated 12 August 2008 and NGB Special Orders Number 214 AR, dated
19 August 2008, to show he was promoted to the rank of CW4 with an effective date of 29 January 2008; and

	b.  paying the applicant any adjustment of pay due as a result of these changes.



      _________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)                                         AR20080017636



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017636



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1