IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120002400 


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:

* his date of rank for chief warrant officer four (CW4) be changed to June 2007
* all back pay and allowances as a result of the above correction

2.  The applicant states:

* his supervisor refused to promote him without justified reasons even though he met every requirement
* he returned from Operation Iraqi Freedom in June 2005 with knee problems and had surgery in February 2006
* he was scheduled to attend the warrant officer course in April 2006, but he cancelled attendance due to a change in his job assignments
* he had a second knee surgery in June 2007 and was on convalescent leave until 10 August 2007 
* his branch chief wanted to promote him in 2007 and 2008
* he was treated unfairly and harassed by his supervisor for 3 years without his branch chief or division chief doing anything about it
* he had back surgery in June 2008 and he was on convalescent leave from June to August 2008
* he was the only one in his section required to show a doctor's slip
* duty hours he kept for 7 years due to traffic were changed


* his Officer Evaluation Report for the 2006-2007 period was signed on 14 November 2007, and later re-signed by his supervisor on 30 April 2008
* he sought recourse for his promotion through the Inspector General, but he was told there was nothing they could do with this matter
* if he had treated another Soldier the way he was treated he would have been put out of the military
* his military career started with a tour in Vietnam and he has served faithfully 34 years 
* he has also served his fellow citizens as a volunteer firefighter and law enforcement officer more than 20 years

3.  The applicant provides:

* self-authored statements
* Promotion Memorandum, National Guard Bureau (NGB), dated 1 July 2009
* Memorandum, dated 25 October 2006, from the Operations Officer, Property Accountability Inspection, Office of the Inspector General
* Special Orders Number 161AR, NGB, Washington, DC, dated 1 July 2009
* National Guard Regulation 600-101 (Warrant Officers, Federal Recognition and Related Personnel Actions) extracts
* DA Forms 67-9 (Officer Evaluation Report (OER)) for the period             11 October 2001 through 2 June 2008
* Order Number 195-052, Headquarters, Maryland Air National Guard, Fifth Regiment Armory, Baltimore, MD, dated 23 December 2002
* Two NGB, Arlington, VA Memoranda, dated 2 June 2009
* DA Form 1059 (Service School Academic Evaluation Report), dated 25 May 2007
* A DA Form 705 (Army Physical Fitness Test Scorecard), dated 29 August 2007

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Army of the United States and serving as a commissioned officer in the U.S. Army Reserve and Army National Guard, the applicant was granted initial Federal recognition as a warrant officer one (WO1), on 15 August 1996, in the Maryland Army National Guard (MDARNG).  

2.  On 30 April 1998, the Departments of the Army and the Air Force, NGB, Washington, DC, published Special Orders Number 79 AR, extending the 


applicant Federal recognition for promotion to CW2 with an effective date and date of rank of 16 January 1998.

3.  On 7 January 2003, the Departments of the Army and the Air Force, NGB, Washington, DC, published Special Orders Number 3 AR extending the applicant Federal recognition for promotion to CW3 with an effective date and date of rank of 19 December 2002.

4.  On 25 August 2006, the applicant was granted a waiver for retention beyond age 60.

5.  On 1 July 2009, the Army and the Air Force, NGB, Washington, DC, published Special Orders Number 161 AR extending the applicant Federal recognition for promotion to CW4 with an effective date and date of rank of        17 June 2009.

6.  The applicant's: 

   a. OER for the period ending 1 June 2007 shows he was fully qualified, rated "Center of Mass," and contains the following comments: 

* unable to adequately develop budget numbers, training, and equipment plans to support the Program Objective Memorandum and supplemental purchases
* the minimum tasks performed were satisfactory

   b. OER for the period ending 1 June 2007 was authenticated by his rater (deputy branch chief) on 17 April 2008, intermediate rater (branch chief) on 30 April 2008, and senior rater (division chief) on 2 May 2008.  The applicant acknowledged receipt of the OER on 13 May 2008. 

   c. OER for the period ending 1 June 2008 shows he was fully qualified, rated "Center of Mass," and contains the following comments:

* he has participated in many tasks over the last year, but due to his increasing health issues, has not be able to be assigned on-going or time-consuming projects
* has not been able to complete any more of the military education courses or the Army Leadership Executive Developmental Course this year, nor has he attended other officer education courses


* needs additional leadership training, technical training in logistics automation, and grooming to be placed in positions with greater responsibilities 

   d. OER for the period ending 1 June 2008 was authenticated by his rater (deputy branch chief) and intermediate rater (branch chief) on 9 January 2009, and his senior rater (G4) on 22 January 2009.  The applicant acknowledged receipt of the OER on 8 June 2009. 

   e. OER for the period ending 1 June 2009 shows he was rated "Best Qualified" and contained the comment "…performed outstandingly in this rating period…."  The OER was signed by his rater (deputy branch chief) on 15 July 2009, intermediate rater (branch chief) on 24 July 2009, and senior rater (division chief) on 14 January 2010.  The applicant acknowledged receipt of the OER on 15 January 2010.

7.  During the processing of this case, on 19 January 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who recommended disapproval of the applicant's request.  He states, in part:

   a. The applicant met minimum eligibility requirements for promotion to CW4 on 19 December 2007, after completing the Warrant Officer Staff Course, on 25 May 2007 and serving a minimum of 5 years time in grade as a CW3 per National Guard Regulation 600-101, chapter 7, paragraph 7-8.

   b. The applicant was a Title 10 Active Guard Reserve (AGR) Soldier assigned to the National Guard Bureau.  

   c. There is no expectation that promotions are automatic upon achieving minimum promotion requirements.  Although the applicant met the educational and time in grade requirements his command was not obligated to promote him to the next higher grade immediately.  He was promoted effective 17 June 2009 when his command felt it was appropriate.

8.  On 8 February 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.  

9.  Special Orders Number 108 AR, Departments of the Army and the Air Force, NGB, Washington, DC, dated 2 April 2012, transferred the applicant to the U.S. Army Reserve Control Group (Retired).

10.  National Guard Regulation 600-101, chapter 7, paragraph 7-11 states the recommendation for promotion for warrant officers serving on a Title 10 AGR tour managed by the NGB is initiated by the first line supervisor, through channels, and back to the State for concurrence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his date of rank for CW4 be changed to June 2007 with all back pay and allowances was carefully considered. 

2.  Although the applicant contends he was harassed by his chain of command there is insufficient evidence to support this contention.

3.  His OERs ending 2007 and 2008 show that although he was fully qualified, his performance was merely satisfactory.  His performance was rated as outstanding in 2009.

4.  Although he met other qualifications for promotion, his first line supervisor determined he was not deserving of an earlier promotion and the first line supervisor was well within the standards of National Guard Regulation 600-10.  Further, his OERs ending 2007 and 2008 confirm her decision and show the rating chain concurred.

5.  In view of the foregoing, there is insufficient evidence to grant the applicant's request.

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)                                         AR20120002400



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ABCMR Record of Proceedings (cont)                                         AR20120002400



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