IN THE CASE OF:	  

		BOARD DATE:	    18 January 2011

		DOCKET NUMBER:  AR20100018392 


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 her records to show the effective date and date of rank (DOR) for her promotion to chief warrant officer two (CW2)/pay grade W-2 was 30 November 2009 (vice 29 April 2010), and payment of all pay and allowances due as a result of this correction.

2.  The applicant states her application for Federal recognition for promotion to CW2 was delayed due to miscommunication between the State Joint Force Headquarters - Virginia and the National Guard Bureau (NGB).  She also states:

   a.  she was appointed to warrant officer one (WO1)/pay grade W-1 on
30 November 2007 as a U.S. Code (USC), Title 10, warrant officer;

   b.  she completed the Warrant Officer Basic Course (WOBC) on 24 October 2008;

   c.  she was assigned to the NGB, Assistant Chief of Staff, G-4, with duty at Headquarters, 29th Infantry Division (Light), Fort Belvoir, Virginia;

   d.  she was mobilized on active duty in support of Operation Enduring Freedom (OEF) on 28 November 2008 and told that her promotion packet for CW2 should be completed by the NGB because she was a USC, Title 10, officer;

   e.  she was released from the USC, Title 10 program on 21 September 2009 and told that her promotion packet for CW2 should be completed by her deployed unit because she was no longer assigned to the USC, Title 10 program;
   f.  she was released from OEF on 1 December 2009 and brought back on the USC, Title 10 program on 2 December 2009; and

   g.  she had to wait three months to get a letter of recommendation for promotion from the division chief because she had never worked in the division.

3.  The applicant provides copies of her active duty orders, eligibility for promotion (i.e., WOBC completion), and promotion memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the Army National Guard (ARNG) in the grade of WO1 (W-1) effective 30 November 2007.

2.  In support of her application, the applicant provides the following documents:

   a.  NGB, Washington, DC, Special Orders Number 9 AR, dated 14 January 2008, that announced the extension of Federal recognition of the applicant's initial appointment in the ARNG in the grade of WO1 (W-1) effective 
30 November 2007;

   b.  NGB, Arlington, VA, Orders 352-2, dated 18 December 2007, that ordered the applicant to active duty under USC, Title 10, section 12301(d), in an Active Guard Reserve (AGR) status for a period of 3 years on 30 November 2007;

   c.  A DA Form 1059 (Service School Academic Evaluation Report) that shows the applicant completed the Property Accounting Technician WOBC on 
24 October 2008;

   d.  NGB, Arlington, VA, Orders 264-1, dated 21 September 2009, that released the applicant from attachment to Headquarters and Headquarters Company, U.S. Army Garrison, Fort Myer, VA and released her from duty at the ARNG Readiness Center, Arlington, VA, effective 27 November 2008, based on her mobilization in support of OEF;

   e.  Office of the Adjutant General of Virginia, Joint Forces Headquarters - Virginia, Blackstone, VA, Orders 326-402, dated 21 November 2008, that ordered the applicant to active duty under USC, Title 10, section 12302, for the purpose of mobilization in support of OEF for a period of 400 days on
28 November 2008;


   f.  Camp Shelby Joint Forces Training Center, Camp Shelby, MS, Orders
354-542, dated 19 December 2008, that ordered the applicant on a temporary change of station and deployment to Afghanistan in support of OEF on
15 January 2009;

   g.  NGB, Arlington, VA, Orders 336-5, dated 2 December 2009, that ordered the applicant to active duty under USC, Title 10, section 12301(d), in an AGR status for a period of 3 years on 1 December 2009;

   h.  Virginia Army National Guard (VAARNG), Blackstone, VA, Orders
119-066, dated 29 April 2010, that promoted the applicant to CW2 effective
29 April 2010.  The orders show "Date of Rank:  Not applicable" and "Additional instructions:  You will not receive pay nor wear insignia in higher grade until federal recognition has been extended by Chief, NGB";

   i.  NGB, Arlington, VA, memorandum, dated 11 May 2010, Subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, that shows the applicant was promoted to CW2 in the ARNGUS effective 29 April 2010; and

   j.  NGB, Washington, DC, Special Orders Number 95 AR, dated 11 May 2010, that announced the extension of Federal recognition of the applicant's promotion in the ARNG in the grade of CW2 (W-2) effective 29 April 2010.

3.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA.

   a.  The advisory official recommends disapproval of the applicant's request for correction of her DOR to CW2.

   b.  The advisory official notes the recommendation is based on evidence provided by the VAARNG, as follows:

       (1)  Joint Forces Headquarters - Virginia National Guard, Richmond, VA, memorandum, dated 17 June 2010, from the Command Chief Warrant Officer, that shows the applicant met the time-in-grade requirements for promotion to CW2 on 30 November 2009.  At the time the applicant was assigned to the
276th Engineer Battalion of the VAARNG and deployed to Afghanistan.  However, due to performance issues, her immediate commander did not recommend her for promotion and conveyed this to the applicant.  The Command Chief Warrant Officer also provided copies of counseling statements and email traffic concerning the applicant's performance and promotion status.


       (2)  Office of the Adjutant General of Virginia, VAARNG, Blackstone, VA, memorandum, dated 19 June 2010, from the Assistant Chief of Staff, G-1, shows the VAARNG recommends disapproval of the applicant's request for correction of her CW2 DOR to 30 November 2009 based on the fact that she was not recommended for promotion by her immediate commander due to poor performance and behavioral issues.

       (3)  Four DA Forms 4856 (Development Counseling Forms) that document counseling of the applicant by the battalion S-4 (on 11 April, 3 August, and
8 August 2009) and the battalion executive officer (on 25 May 2009) to provide her performance feedback, direction, and guidance.  The documents show the counseling was based on the applicant's "defiance to follow orders," her negative conduct and performance of duties and responsibilities, and refusal to accept taskings and responsibilities.  On 8 August 2009, the battalion S-4 informed the applicant he could not recommend her for promotion to CW2.

       (4)  An email message string from within the VAARNG command, Subject:  Request for Assistance with WO1 [Applicant's Name], covering the period
24 August 2009 to 23 March 2010, that discuss the negative issues pertaining to the applicant's duty performance, counseling requirements, and the process and procedures for promotion to CW2.

4.  On 22 November 2010, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  To date, a response has not been received from the applicant.

5.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) governs policies and procedures for ARNG warrant officer personnel management.  Chapter 7 (Promotions) provides in:

   a.  paragraph 7-1 that the promotion of warrant officers in the ARNG is a function of the State;

   b.  paragraph 7-7 (Eligibility for promotion) outlines the requirements for consideration for Federal recognition and concurrent Reserve of the Army promotion.  Subparagraph 7-7a(8) provides that the warrant officer must be recommended for promotion by their immediate commander;

   c.  paragraph 7-8 (Minimum years of promotion service) and Table 7-1 (Minimum Time-in-Grade for Promotion) show that to attain eligibility for promotion and receive Federal recognition in the next higher grade a WO1 must complete two years in grade W-1 to be eligible for promotion to CW2 (W-2); and


   d.  paragraph 7-9 (Military education requirements) and Table 7-2 (Minimum Military Educational Requirements for Promotion and Time in Current Grade Required for Course Enrollment) show that to attain eligibility for promotion to CW2 a warrant officer must complete the WOBC or equivalent certification within two years from the date of initial appointment as a WO1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the effective date and DOR for her promotion to CW2 (W-2) should be corrected to 30 November 2009 and she should receive back pay for all pay and allowances due as a result of the correction because her promotion to CW2 was delayed due to miscommunication between the State Joint Force Headquarters - Virginia and the NGB.

2.  The evidence of record shows the applicant was eligible for promotion to CW2 on 30 November 2009 based on having met the time-in-grade and military education requirements.  However, this is not the overriding issue in this case.

3.  The evidence of record shows a warrant officer's immediate commander must recommend approval of the warrant officer's promotion to CW2 and that the promotion of warrant officers in the ARNG is a function of the State.

4.  There is no evidence the applicant was recommended for promotion to CW2 on 30 November 2009.  In fact, the evidence of record shows that during the applicant's deployment to Afghanistan in support of OEF, her chain of supervision/command did not support the applicant's promotion to CW2.

5.  VAARNG and NGB orders promoted the applicant to CW2 effective and with a DOR of 29 April 2010.

6.  There is no evidence of record that shows the applicant's promotion to CW2 was delayed due to miscommunication between the State Joint Force Headquarters - Virginia and the NGB.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of her records to show she was promoted to CW2 with an effective date and DOR of 30 November 2009.


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 that 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)                                         AR20090017888



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018392



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1