IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20110000581 


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 promotion to chief warrant officer five (CW5).

2.  The applicant states he believes he was selected for, trained in, assigned to, performed in the duty position, and met all the requirements for promotion to CW5.  He had over 18 years of time in grade (TIG) as a chief warrant officer four (CW4), completed the Warrant Officer Senior Staff Course, selected by the State Adjutant General, and performed CW5 duties as the Detachment Commander, Detachment 25 (DET 25), OSA (Operational Support Airlift), Tennessee Army National Guard (TNARNG), Smyrna, TN, for 19 months (February 2008 through August 2009).  He was assigned to and occupied an authorized CW5 position for more the 30 days as required by Title 10, U.S. Code, section 1371 and the Adjutant General agreed that he should be promoted to CW5. 

3.  The applicant provides:

* a self-authored summary of issues related to his non-promotion
* a memorandum from the State Adjutant General, TNARNG
* his assumption of command memorandum
* a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* his official photograph
* Orders 338-176 (Military Occupational Specialty (MOS) Change)
* a DA Form 1059 (Service School Academic Evaluation Report)
* a self-authored memorandum, subject: Requirement to Retire
* DA Forms 67-9 (Officer Evaluation Report (OER) for the periods 16 August 2007 through 15 August 2008 and 11 August 2008 through 10 August 2009
* Orders 175-807 (Duty Position Assignment Order)
* a certificate for award of the Legion of Merit
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 287-894 (Retirement Orders)
* Orders 072-035 (Order to Full Time National Guard Duty (FTARNG) for Operational Support (OS))

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was born on 20 August 1949.

2.  Having had prior enlisted service, the applicant's record shows he was appointed as a Reserve warrant officer one with concurrent call to active duty and he executed a DA Form 71 (Oath of Office - Military Personnel) on 9 October 1973.  He was honorably released from active duty in the rank of chief warrant officer two (CW2) on 31 January 1977 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

3.  He was appointed as a CW2 in the TNARNG on 5 February 1977 and he initially held MOS 100B (Utility/Observation Helicopter Pilot).  He served in various assignments and he attained the rank of CW4 on 17 February 1991. 

4.  On 7 February 1994, the TNARNG issued the applicant a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60, commonly known as the 20-year letter.

5.  On 13 February 2003, he was awarded MOS 155A (Fixed Wing Aviator) and on 3 December 2004, he was awarded MOS 155E (C-12 Pilot).  Additionally, on 3 December 2004, he was assigned as an Operations Officer with DET 25, OSA, Smyrna, TN.

6.  On 8 March 2006, he was ordered to active duty and he subsequently served in Kuwait from 19 March 2006 to 17 September 2006.  He was honorably released from active duty on 11 October 2006.

7.  On 6 April 2007, the NGB published Special Orders Number 83 AR extending him Federal recognition for an MOS change from 155A to 153D (UH-60 Pilot).

8.  On 13 March 2009, he was ordered to FTNGD - OS as a FTNG Mobilization Augmentee from 1 April 2009 through 30 September 2009.  He entered active service on 1 April 2009 and he was attached to the TNARNG Element, Joint Forces Headquarters, Nashville, TN.

9.  On 18 March 2009, the TNARNG published Orders 077-856 assigning him as an ALSE (Aviation Life Support Equipment) Officer in MOS 155E, effective
1 March 2009.

10.  On 18 March 2009, the TNARNG also published Orders 077-854 releasing him from attachment to the TNARNG Element, Joint Forces Headquarters, Nashville, TN.

11.  He successfully completed the Warrant Officer Senior Staff Course (WOSSC) from 6 April to 17 April 2009 at Fort Rucker, AL. 

12.  On 24 June 2009, the TNARNG published Orders 175-807 assigning him as a Detachment Commander for DET 25, OSA, Smyrna, TN, in MOS 155E, effective 22 June 2009.

13.  On 30 June 2009, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P06-907689, honorably placing him on the retired list in the grade of CW4, effective 1 September 2009 (the beginning of the month following his 60th birthday, 20 August 2009).

14.  He was honorably released from active duty and from the ARNG on 31 August 2009 and he was transferred to the USAR Control Group (Retired Reserve) in his retired grade of CW4.  His NGB 22 shows he completed 37 years and 3 days of total service for pay.

15.  On 14 October 2009, the TNARNG published Orders 287-894 honorably separating him from the ARNG and assigning him to the Retired Reserve, effective 31 August 2009.  The orders listed his retired grade as a CW4.

16.  He submitted the following documents:

	a.  a self-authored summary of issues related to his non-promotion, dated
14 July 2010.  He states that during his deployment to Kuwait in 2006, he was 

informed that he had been selected by the State Aviation Officer to fill a CW5 position.  He met the requirements but needed to attend a qualification course upon return.  He adds that he was later told by the State Safety Officer that he wanted him to apply for an opening as the Command Chief Warrant Officer (CCWO) upon the incumbent's retirement in August 2008.  Accordingly, he prepared an application and met with Brigadier General (BG) DG, Assistant Adjutant General, to discuss the issue, but BG DG retired prior to making a selection.  He then met with Major General (MG) GH and expressed his interest in the projected opening.  He was then told by Colonel (COL) TE (recently named as Chief of Staff, TNARNG) that MG GH had selected him but he would not be able to fly if he accepted the position.  Accordingly, on 29 April 2008, COL TH confirmed the selection.  However, on 8 May 2008, COL TH replaced BG DG as the Assistant Adjutant General.  COL TH was not comfortable with the selection process for the CCWO position and asked to re-interview all applicants for the positions.  He adds that upon re-interview, another CW4 was selected for the position but he was told there was no objection to promoting him in the current position he had held as Detachment Commander of DET 25, OSA.  He had functioned as a detachment commander from 8 February 2008 and occupied a CW5 position.  He also completed the WO Senior Staff Course.  However, due to limitations that he never really understood, he was not promoted to CW5 prior to his retirement at age 60.

	b.  a memorandum, dated 16 July 2010, from MG TMH, the Adjutant General, TNARNG, wherein MG TMH states he supports the applicant's request to be promoted to CW5 for retirement pay purposes.  The applicant had served for over 37 years, the last 19 of which were served in a CW5 position.  He had performed the duties of a CW5 and through no fault of his he was never promoted to the rank he deserved. 

	c.  an assumption of command memorandum, dated 8 February 2008, wherein he assumed command of DET 25, OSA, TNARNG, effective that date. 

	d.  a DA Form 705, dated 23 June 2008, that shows he met the height and weight standards and passed his APFT.

	e.  a self-authored memorandum, dated 26 September 2008, wherein he states he had been briefed on the plan to promote him to CW5 in his current position as the commander of DET 25, OSA, and that this promotion was contingent upon him agreeing to retire and vacate the slot upon another CW5's return from Title 10 deployment.  He added that he would retire and vacate the slot on or before 28 March 2010 which was the date the other CW5 was projected to return from deployment.

	f.  two OERs covering the periods 16 August 2007 through 15 August 2008 and 11 August 2008 through 10 August 2009 that show he was rated in his position as ALSE Officer/Acting Commander of the OSA fixed wing DET 25.

	g.  a certificate, dated 28 July 2009, awarding him the Legion of Merit for service culminating as commander of DET 25, OSA.

17.  In connection with the processing of this case, on 11 February 2011, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommends disapproval of the applicant’s request.  He states the TNARNG had reached its maximum authorized CW5s in fiscal year 2009.  He adds that every State is authorized no more than 2.5 percent (%) of CW5 positions.  The applicant’s prior remarks on 8 July 2009 indicate he had been informed by the warrant officer branch that the State had reached their maximum authorization for CW5s.  The Adjutant General and Chief of Staff were effectively managing their CW4s and CW5s.  They selected the best qualified at the time knowing they could not go over their authorized grade strength.  The State informed the applicant they had exhausted all options and that they would not be able to promote him.  The State also explained to the applicant that it had too many CW5s and that none of the current CW5s would retire prior to his mandatory retirement date.  

18.  On 11 February 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 21 February 2011, the applicant responded to the NGB advisory opinion.  He stated that he does not disagree with the statement that on the date of his retirement on 31 August 2009, all authorized CW5 positions were filled.  However, his disagreement is with the statement that the State Adjutant General and Chief of Staff were effectively managing CW4s and CW5s.  Between 2006 and 2009, there were 3 CW5 positions filled by the TNARNG:  State Aviation Safety Officer, Detachment Commander, and Command Chief Warrant Officer.  He was selected as the number one candidate for all three positions.  After he was told by the Chief of Staff and The Adjutant General that he was selected to fill the Command Chief Warrant Officer position, the other two positions were filled by other candidates.  The weeks and months that followed were a total confusion with personnel changes and retirements.  In 2009, he was assured by the newly appointed Assistant Adjutant General who had discussed his situation with the warrant officer branch that although he was the number one candidate, he could not promote him prior to retirement.  Yet, after retirement, during a conference, the same individual from the warrant officer branch indicated that if someone had previously talked to him, he could have helped make the promotion effective prior to the retirement.

19.  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.

20.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) 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

21.  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.

22.  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 evidence of record confirms the applicant assumed a valid CW5 detachment commander position on 15 May 2005, as evidenced by assignment orders and an assumption of command memorandum.  It also shows he completed the military education requirement for promotion on 24 June 2005, as evidenced by academic evaluation reports on file that confirms he successfully completed the C-12 pilot course on 28 May 2005 and the WOSSC on 24 June 2005.

2.  The applicant's record shows he was otherwise fully qualified and eligible for promotion.  However, in accordance with NGB guidance, every state is authorized no more than 2.5% of its warrant officer strength in the grade of CW5. Since the TNARNG had reached its maximum authorization in 2009, there would have been no justification to promote any more CW4s to CW5.

3.  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 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)                                         AR20110000581



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ABCMR Record of Proceedings (cont)                                         AR20110000581



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