IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20100025158 


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 retroactive promotion to chief warrant officer five (CW5).

2.  The applicant states he believes he was more qualified for promotion and that the current regulations were violated by promoting another individual ahead of him.  He adds that:

* he was passed over for promotion where a junior warrant officer (WO) was promoted ahead of him in what he considers the "good old boy" scenario
* he was senior to the other individual by date of rank (DOR), schooling, command time, and positions
* he complained to the Inspector General (IG) until the IG was "sick and tired" of what was happening in the South Carolina Army National Guard (SCARNG)
* the regulation was broken in that if a WO is senior to another, the senior  WO must replace the junior WO in this position 
* he was senior to the other individual, more educationally (civilian and military) qualified, more experienced, and had more command time

3.  The applicant provides:

* Email, dated 30 November 2005, from his course manager
* Email, dated 4 November 2006, regarding the Senior Staff Course
* Extract of National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions)
* Army Training Requirement Reservation System (ATRRS) printout
* Unit Manning Report
* Temporary Duty (TDY) Orders to attend the WO Senior Staff Course
* DA Form 2-1 (Personnel Qualification Record)
* Memorandum to the IG, Subject: Investigation into Preferential Promotion Practices
* Letter from the IG
* Memorandum to The Adjutant General (TAG), Subject: Investigation into Preferential Promotion Practices
* Self-authored comparison between himself and the person who was promoted

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was born on 2 April 1960.

2.  Having had prior enlisted service, he was appointed as a Reserve WO and entered active duty on 20 August 1985.  He held military occupational specialty (MOS) 152G (AH-1 Pilot).  

3.  He was honorably released from active duty in the rank of chief warrant officer two (CW2) on 31 August 1990 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

4.  He was appointed as a CW2 in the SCARNG on 10 March 1992.  He subsequently entered active duty on 5 December 1992, served in a variety of assignments, and held MOS 152F (AH-64 Pilot).  He was promoted to chief warrant officer three on 20 August 1993 and chief warrant officer four (CW4) on 8 October 1998. 

5.  His records show, since his promotion to CW4, he completed the following training courses:

* Fixed Wing Multi-Engine Qualification Course, August 1999
* Contracting Officer Representative Course, January 2000
* Aviation Safety Officer Refresher Course, September 2004
* Accident Investigation Board President Course, December 2006

6.  On 30 November 2005, he exchanged an email with his course manager regarding attending the WO Senior Staff Course, starting on 5 December 2005 and ending on 16 December 2005. 

7.  On 4 November 2006, he exchanged an email with another individual regarding the WO Senior Staff Course.  The individual told him that the SCARNG policy is that only CW4s who have been selected for promotion (money being the driving force) are sent to this course.  Since he had not been selected for promotion, he could not attend the course. 

8.  In late 2006, having completed at least 20 years of active Federal service, he requested voluntary retirement, to be effective 30 September 2007.  On 6 June 2007, the SCARNG published Orders 157-807, placing him on the retired list in the grade of CW4, effective 1 October 2007.

9.  He was retired from active duty on 30 September 2007 and placed on the retired list in the rank of CW4. 

10.  On 20 February 2008, in response to the applicant's complaint, the Office of the IG, Headquarters, Department of the Army, stated that his allegations that Brigadier General LDE, SCARNG, improperly promoted a subordinate, were not founded.  The IG added that although SCARNG Regulation 600-101 (Warrant Officers - Federal Recognition and Personnel Actions) states a WO assigned to a position higher than his current grade will be removed from the position at any time another WO is found eligible and qualified for the position, such action is considered a command decision based on the commander's judgment at the time. 

11.  An advisory opinion was obtained from the National Guard Bureau in the processing of this case.  An official recommended disapproval and stated:

	a.  The applicant was not selected for promotion to CW5 by the State on two different occasions.  Additionally, he is not a graduate of the WO Senior Staff Course which is a requirement to be promoted to CW5.  

	b.  According to NGR 600-101, paragraph 7-7a(6), promotion to CW5 requires the WO to be assigned to an MTOE/TDA (Modified Table of Organization and Equipment/Table of Distribution and Allowances) position coded MW, W5, or to a position certified by the appropriate Department of the Army MOS proponent as approved for coding as a W5.

	c.  Excluding the fact that he did not attend the Senior Staff Course, even if he had attained the minimum requirements for promotion to the next higher grade, there is no expectation that promotions are automatic upon achieving promotion requirements.


12.  In his rebuttal, the applicant stated:

* He was passed over for promotion, contrary to governing regulations
* He was senior by date of rank and more educationally qualified than others
* The IG agreed that the SCARNG broke the regulation
* The regulation required that because he was senior and more qualified, he should have been placed in the higher position, not the other WO
* When the other individual was placed in the higher position, he was not qualified
* The SCARNG left him in the higher position until he attained eligibility for promotion
* This particular position required a special skill that only he and the other WO were qualified for
* The statement that he did not attend the WO Senior Staff Course is misleading; the State would not send him to school until he had already been selected for promotion
* He was scheduled for the course but was pulled out for unknown reasons

13.  Army Regulation 611-1 (Military Occupational Classification Structure Development and Implementation) prescribes the methods of developing, changing, and controlling the officer, warrant officer, and enlisted military occupational specialty.  Chapter 5 governs the warrant officer classifications system.  It states the Army’s policy is to authorize only a minimum number of MOSs; however, the actual number authorized must be compatible with the Army’s needs.  Warrant officers are highly specialized technicians, but the narrower their specializations, the greater the possibility of technological obsolescence, assignment restrictions, and personnel turbulence.  Therefore, it is desirable that warrant officer MOSs be as broad in scope as possible, but commensurate with training opportunities available and urgency of requirements.

14.  NGR 600-101 prescribes the policies and procedures for the management of officers of the ARNG.  Chapter 7 contains promotion policy and states, in pertinent part, that in order to be eligible for promotion to CW5, a member must be in an active status and be MOS qualified.  He/she must also be medically fit and meet the height weight requirements, have completed the minimum years of promotion service, have completed the military education requirement (completion of WOSSC), and have passed the APFT within the time frame prescribed

15.  Title 10, U.S. Code, section 1371, states unless entitled to a higher retired grade under some other provision of law, a warrant officer retires, as determined by the Secretary concerned, in the permanent regular or reserve warrant officer grade, if any, that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he served on active duty satisfactorily, as determined by the Secretary, for a period of more than 30 days.

16.  Title 10, U.S. Code, section 1406, governs non-regular service retirement and provides, in effect, that a Reserve or National Guard member who is entitled to retired pay under section 12731 of this title shall be retired in the highest grade held satisfactorily by the person at any time in the armed forces, other than in an inactive section of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's qualifications are not in question; however, promotion in the ARNG is a function of the State.  Additionally, being fully eligible for promotion does not mean the officer is automatically selected for promotion.  The Commander and/or TAG effectively manage their CW4s and CW5s.  They appear to have selected the best qualified individual for the position.  

2.  Additionally, contrary to the applicant's contention that the State used the "good old boy" system, the IG stated that his allegations that the SCARNG improperly promoted a subordinate were not founded.  Although SCARNG Regulation 600-101 states a WO assigned to a position higher than his current grade will be removed from the position at any time another WO is found eligible and qualified for the position, such action is considered a command decision based on the commander's judgment at the time.  

3.  The Board is reluctant to second-guess the Commander's/TAG's selections for promotion within his or her state.  It appears the applicant was not necessarily the best candidate for the job and subsequent promotion at the time. 

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)                                         AR20100025158



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ABCMR Record of Proceedings (cont)                                         AR20100025158



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