IN THE CASE OF:	

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015809 


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 correction of his date of rank (DOR) as a chief warrant officer three (CW3) from 17 December 2008 to 3 March 2008.

2.  The applicant states that his DOR as a chief warrant officer two (CW2) was changed from 2 August 2005 to 19 May 2002 and he should have been eligible for promotion to CW3 as soon as he completed the warrant officer advanced course (WOAC) on 4 March 2008.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 July 2006; a copy of his DA Form 1059 (Service School Academic Evaluation Report), dated 4 March 2008; copies of National Guard Bureau (NGB) Special Orders Number 276 AR and 38 AR, issued on 28 October 2008 and 19 February 2009; a copy of his promotion to CW3 memorandum, dated 19 February 2009; and a copy of the Board's Record of Proceedings, dated 17 September 2008.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a warrant officer one in the New Mexico Army National Guard (ARNG) and executed the oaths of office on 19 May 2000 in military occupational specialty (MOS) 918 (Unit Maintenance Officer).  He was assigned to Battery B, 1st Battalion, 200th Air Defense Artillery, Hobbs, NM.

2.  On 2 August 2005, NGB published Special Orders Number 253 AR extending him Federal recognition for promotion to CW2 with an effective date and DOR of 2 August 2005.

3.  On 16 September 2005, he was ordered to active duty in support of Operation Enduring Freedom.  He was honorably released from active duty on 28 July 2006.

4.  On 4 March 2008, he completed WOAC at Redstone Arsenal, AL.

5.  On 16 September 2008, the Board granted him relief in the form of adjustment of his DOR and effective date of promotion to CW2 from 2 August 2005 to 19 May 2002.

6.  On 28 October 2008, NGB issued Special Orders Number 276 AR adjusting his DOR and effective date of promotion to CW2 to 19  May 2002 per the Board's directive.

7.  On 19 February 2009, he received a memorandum informing him that he was considered and selected by the Fiscal Year 2008 Reserve Components Selection Board for promotion to CW3 with an effective date and DOR of 17 December 2008.  He was subsequently issued Special Orders Number 38 AR on 19 February 2009 extending him Federal recognition for promotion to CW3 with an effective date and DOR of 17 December 2008.

8.  An advisory opinion was obtained on 29 January 2010 in the processing of this case.  An official at NGB recommended approval of his request for correction of his CW3 effective date of promotion and DOR to reflect 4 March 2008 with retroactive pay and allowances from 4 March 2008 to 16 December 2008.  The official stated that he met eligibility criteria for promotion to CW3 on 4 March 2008.  He is in an active status and is MOS qualified, he met the 5-year minimum time in grade in the lower grade for promotion to CW3, and he completed WOAC on 4 March 2008.

9.  He was provided with a copy of this advisory opinion on 4 February 2010 but did not respond.

10.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Promotions will be based on the Department of the Army proponent duty MOS certification via satisfactory completion or constructive credit of appropriate level of military education, time in grade, demonstrated technical and tactical competence, and potential for service in the next higher grade as determined by a Federal Recognition Board.  Promotion will not be used solely as a reward for past performance.

11.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 and the education requirements of Table 7-2 of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states, in pertinent part, that the minimum time in grade for promotion to CW3 is 5 years in the lower grade.  Table 7-2 states, in pertinent part, that the minimum military education requirement for promotion to CW3 is completion of the common core prerequisite correspondence studies and the duty MOS WOAC or equivalent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR as a CW3 should be adjusted from 16 December 2008 to 3 March 2008.

2.  The evidence of record shows he completed WOAC on 4 March 2008.  Additionally, his DOR as a CW2 was previously adjusted by this Board from 25 August 2005 to 19 May 2002 and accordingly he met the minimum time-in-grade requirements for  promotion to CW3.

3.  Therefore, he is entitled to adjustment of his promotion effective date and DOR to CW3 to 4 March 2008 and to restoration of back pay and allowances as a result of this correction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  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:

	a.  amending Special Orders Number 38 AR, dated 19 February 2009, to show that he was promoted to CW3 with an effective date and date of rank of 
4 March 2008 and extended Federal recognition effective 4 March 2008 in the grade of CW3 and

	b.  restoration of back pay and allowances as a result of this correction.

2.  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 as pertains to adjusting his DOR to 3 March 2008.



      ____________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)                                         AR20090015809



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ABCMR Record of Proceedings (cont)                                         AR20090015809



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