BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100010463 


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, correction of his records to show he was appointed in the grade of chief warrant officer two (CW2).

2.  The applicant states a recent change to Army Regulation 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers of the Army) allows officers considered under an exception to be appointed in the grade of CW2 if they are certified by the military occupational specialty (MOS) proponent that attendance at the Warrant Officer Basic Course (WOBC) is not required.  He adds that there is no provision for prior commissioned officers to be "grandfathered" for serving as a warrant officer one (WO1) but not yet reaching their promotion date to CW2.

3.  The applicant provides a memorandum of qualifications.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 26 February 1959.

2.  Having had prior enlisted service, his records show he was appointed as a second lieutenant in the New Jersey Army National Guard and executed the oaths of office on 7 June 1980.  He served in staff or leadership positions and attained the rank of lieutenant colonel on 25 March 2002.

3.  On 7 April 2004, the U.S. Army Human Resources Command, St. Louis (HRC-STL), MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 8 April 2008, he submitted an application for appointment as an Army Reserve Aviation WO.  On 14 May 2008 in connection with this application, the Director of Aviation Personnel Proponency requested a predetermination for the applicant's appointment as a WO by memorandum addressed to HRC-STL.  The author indicated the applicant was qualified and met the technical prerequisites to be appointed in MOS 153B (UH-1 Pilot).  He added that awarding the applicant MOS 155E (C-12 Pilot) can only be accomplished following successful completion of the Fixed Wing Multi-Engine Qualification Course at Fort Rucker, AL.

5.  The applicant was appointed as a Reserve WO of the Army in the grade of WO1 and executed an oath of office on 8 July 2008.

6.  He was assigned to the 2nd Battalion, 228th Aviation Regiment, U.S. Army Reserve, on 30 April 2009 and he completed the Fixed Wing Multi-Engine Qualification Course from 5 July 2009 to 2 October 2009.

7.  He entered active duty on 4 April 2010 and subsequently served in Iraq from 25 April 2010 to 23 October 2010.  He was promoted to CW2 on 8 July 2010.  He was honorably released from active duty on 20 November 2010.

8.  An advisory opinion was obtained from the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, in the processing of this case.  An official stated:

	a.  There is no apparent error or injustice in the applicant's appointment grade.  He was appointed as a WO1 from commissioned officer status in the appropriate grade with the policy in effect at the time of his appointment.

	b.  The Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) 28 July 2009 directive authorizes the appointment of prior Reserve Component (RC) commissioned officers in the grade of CW2 when the MOS proponent certifies attendance at the WOBC is not required.  This policy did not apply to the applicant because he was appointed more than a year before the change in policy.  The change in policy applied on the effective date of the change in policy; it did not contain a "grandfather" clause.

9.  The applicant was provided with a copy of this advisory opinion, but he did not respond.

10.  Army Regulation 135-100 establishes responsibility and provides procedures for the appointment of commissioned and WO's in the RC of the Army.  Paragraph 1-9b states effective 1 October 1992 all applicants for WO appointment will be appointed to WO, W-1, on successful completion of WOCS or WOCS-RC in MOS code 001A and per the procedures in paragraph 2-7.1 below, except a chief warrant officer (CWO) or a former CWO may be appointed in the highest WO grade satisfactorily held.  Applications from commissioned and former commissioned officers for appointment as a WO will be reviewed by the appropriate WO MOS proponent for certification for the award of the MOS prior to final action by HRC.

	a.  Paragraph 2-7d states all appointments (to include current or former commissioned officers) to WO, W-1, except appointments under another paragraph of this regulation, will be contingent on technical and tactical certification by successful completion of the appropriate WOBC or certification by the MOS proponent as technically and tactically certified for award of an authorized WO MOS.

	b.  Paragraph 3-28 states certain personnel qualifying for WO MOS's currently authorized in the appropriate regulation may apply for appointment under this section.  Former commissioned and WO's may qualify for award of an MOS by previous training and experience except for commissioned officers who have been removed or are approaching mandatory removal from an active status for completion of maximum age or service are ineligible.

11.  ASA (M&RA) published a memorandum on 28 July 2009 allowing an exception to Army Regulation 135-100 to appoint commissioned officers as WO's.  This exception allows RC commissioned officers approaching mandatory removal or removed from an active status for maximum years of commissioned service to be eligible for WO appointment provided they are able to serve a minimum of 3 years as a WO before age 60.  Additionally, this memorandum allowed WO's appointed under this exception to be appointed in the grade of CW2 if they are certified by the MOS proponent that WOBC is not required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been appointed as a CW2 under the provisions of the July 2009 ASA (M&RA) directive.

2.  The applicant was appointed as a WO from commissioned officer status in the grade of WO1 on 8 July 2008.  At the time of his appointment, the regulation did not allow for a higher appointment grade.

3.  The ASA (M&RA) directive revised this policy on 28 July 2009.  However, this revision was not retroactive to the date of the applicant's appointment.  The directive did not contain a "grandfather" option for previously-appointed WO's.  As such, all previous requests for appointment that had been properly acted upon by the appropriate approval authority must be considered administratively final.

4.  In view of the foregoing evidence, the applicant is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________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)                                         AR20100010463



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ABCMR Record of Proceedings (cont)                                         AR20100010463



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