IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110006611 


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 that his date of rank to chief warrant officer five (CW5) be adjusted from 15 July 2010 to 3 December 2009.

2.  The applicant states he was recommended for promotion on 3 December 2009, was in a CW5 position accomplishing the job, and a control grade was available.  He contends that all requirements for promotion were met at that time but his promotion was delayed for several months through no fault of his own.  After exhausting all means of addressing the issue with his chain of command and the Army National Guard, he filed a complaint with the Inspector General (IG) whose investigation ruled in his favor.  

3.  The applicant provides a letter from the National Guard Bureau (NGB) Office of the IG, NGB promotion memorandum, State promotion order, NGB Federal recognition orders, DA Form 1059 (Service School Academic Evaluation Report, and an NGB recommendation for promotion memorandum, and NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)).

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve warrant officer on 1 October 1985.  He was promoted to chief warrant officer four (CW4) effective 18 November 2004.  He is currently serving in an Active Guard/Reserve (AGR) status in the rank of CW5.

2.  He completed the Warrant Officer Senior Staff Course (WOSSC) on 
24 November 2009.

3.  On 3 December 2009, he was recommended for promotion to CW5.  The promotion recommendation memorandum certified he met all requirements for promotion.

4.  On 15 July 2010, a FREB was held by the Massachusetts Army National Guard (MAARNG) to determine if the applicant was qualified to be awarded Federal recognition as CW5.  The proceedings indicated that he was physically, morally, generally, and professionally qualified for the appointment sought and recommended the applicant be granted Federal recognition.

5.  On 20 July 2010, the MAARNG published Orders Number 201-029 promoting him to CW5 with an effective date of 15 July 2010.  The orders stated, "Individual will not be paid in grade of CW5 and is not authorized to wear the insignia of the higher grade until Federal recognition is confirmed."

6.  On 26 July 2010, the NGB published Special Orders Number 159 AR extending the applicant Federal recognition as a CW5, effective 15 July 2010.

7.  In a memorandum dated 28 December 2010, the NGB Office of the IG responded to the applicant's request regarding his delayed promotion to CW5.  The Office of the IG inquiry determined the following:

	a.  At the time the applicant's supervisor recommended him for promotion, he did meet the minimum eligibility requirements for promotion to CW5 per National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions).

	b.  Per NGR 600-101, paragraph 7-11b, "The Title 10 AGR Tour Management Office will review the request and if determined to be valid will forward correspondence to the warrant officer's parent State recommending promotion action to the next higher grade."  The IG determined the applicant's promotion packet was not appropriately forwarded to his State for over seven months which was not in accordance with NGR 600-101 and Army National Guard (ARNG) directorates established practices for warrant officer life cycle management at the time.  While promotions are not an entitlement, the recommendation for a promotion is not the promotion itself.  NGR 600-101 states that the recommendation will be forwarded to the state (which serves as the promotion authority).  It was apparent from the conduct of the IG inquiry that the processing of his promotion recommendation to his State stalled.  This occurred due to a series of events that are underway to revise and update the current promotion recommendation process for the Warrant Officer Corps serving in the Title 10 AGR program.  Therefore, the issues that his promotion recommendation was not handled in accordance with the pertinent regulation, was founded.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  This office recommends disapproval of the applicant's request and states the following:

	a.  The Soldier met minimum eligibility requirements for promotion to CW5 on 24 November 2009 upon completion of WOSSC.

	b.  MAARNG supported the promotion of the Soldier.  Prior to the Soldier being promoted, a recommendation for promotion from the NGB and an additional temporary duty assignment position is required.  The required documentation was received by the MAARNG on 13 July 2010.

c.  The Soldier was a Title 10 AGR Soldier assigned to the NGB.  NGR600-101, paragraph 7-11 states "the recommendation for promotion for warrant officers serving on a Title 10 AGR tour managed by NGB is initiated by the first line supervisor, through channels, and back to the State for concurrence.

	d.  Although the Soldier met the minimum requirements for promotion, there is no expectation that promotions are automatic upon achieving promotion requirements.  Regardless of the fact that the Soldier's promotion packet was delayed at NGB, the promotion still would have been no earlier than the date of the Federal Recognition Board (FRB) which was 15 July 2010.

	e.  The State concurs with this recommendation.  

9.  On 19 April 2011, the advisory opinion was forwarded to the applicant for information and to provide him the opportunity to submit comments or a rebuttal. He responded and reiterated the findings of the IG inquiry.

10.  NGR 600-101 prescribes the policies and procedures for ARNG warrant officers personnel management.  Paragraph 7-1 of this regulation specifies that appointment and promotion of warrant officers the ARNG is a function of the State Adjutant General.  These appointments and promotions must be Federally recognized.  Warrant officers may be examined for promotion not earlier than 
3 months in advance of completing the prescribed promotion requirements so that, if recommended by a FRB, promotion may be effected on the date the promotion requirements are met. FRB's convening to examine promotion of warrant officers who have passed their promotion eligibility date, may, if so recommended and determined fully qualified on their promotion eligibility date, consider granting temporary Federal recognition retroactive to that date, but not earlier than 90 days from the date of the FRB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms he was eligible for promotion to CW5 on 
3 December 2009, the date he was recommended for promotion.  However, promotion in the ARNG is a function of the State.  The MAARNG issued him promotion orders effective 15 July 2010.

2.  Absent evidence that the MAARNG intended to promote him and/or took any steps to do so prior to 15 July 2010, there is insufficient evidence to correct his date of rank.

3.  Based on the foregoing, there is no basis to grant 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)                                         AR20110006611



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ABCMR Record of Proceedings (cont)                                         AR20110006611



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