BOARD DATE:	9 July 2013  

		DOCKET NUMBER:  AR20120013686 


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:

* adjustment of his promotion eligibility date (PED) to chief warrant 
officer two (CW2) to 16 September 2011, the date he graduated from the Warrant Officer Basic Course (WOBC)
* immediate promotion to CW2 with a date of rank of 17 September 2011
* entitlement to back pay and allowances

2.  The applicant states:

* he took a voluntary reduction from sergeant first class (SFC)/E-7 to sergeant (SGT)/E-5 in December 2006 to attend the CID Special Agent Course in May 2007 as required by his unit policy
* he was assigned to the 1149th Military Police (MP) Detachment, U.S. Army Criminal Investigation Command (CID)
* prior to this reduction, he had served as an E-7 in the U.S. Air Force Reserve (USAFR) for 5 1/2 months
* he met the eligibility requirements for promotion to CW2 in the Texas Army National Guard (TXARNG) upon completion of WOBC
* National Guard Bureau (NGB) Policy Memorandum Number 07-026, dated 14 August 2007, subject:  Policy to Appoint SFC to CW2, authorizes such promotion


3.  The applicant provides:

* USAFR Order P-088, dated 28 June 2002 (promotion to master sergeant (MSGT)/E-7)
* USAFR DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 November 2002
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 28 July 2006
* NGB Policy Memorandum Number 07-026, dated 14 August 2007
* NGB Special Orders (SO) Number 352 AR, dated 30 December 2011 (initial appointment)
* CID Special Agent WOBC Phase 2 Diploma, dated 16 September 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 14 February 1968.

2.  His records show he previously served in the Regular Air Force from 30 March 1987 to 30 March 1990 as a communications system radio operator.  He was a member of the USAFR when he was mobilized and served on active duty from 8 November 2001 to 4 November 2002 as a security forces craftsman.

3.  He provides a copy of USAFR Order P-088, dated 28 June 2002, that shows he was promoted to the permanent rank/grade of MSGT/E-7 on 1 July 2002.

4.  He enlisted in the TXARNG in the rank/grade of SFC/E-7 on 28 July 2006.  He was assigned to the Information Operations Field Support, 1149th MP Detachment CID, Austin, TX.

5.  On 24 January 2007, the TXARNG published Orders 024-1110 voluntarily reducing him from SFC/E-7 to SGT/E-5 effective 16 December 2006.

6.  He completed the Apprentice Special Agent Course at the U.S. Army MP School from 23 May 2007 to 7 September 2007.  On 27 August 2007, the TXARNG awarded him military occupational specialty (MOS) 31D (CID Special Agent).

7.  On 20 August 2009, a Federal Recognition Board (FRB) was held by the TXARNG to determine if the applicant was qualified to be awarded Federal recognition for appointment as a warrant officer (WO).  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FRB also recommended granting him Federal recognition.

8.  On 2 November 2009, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

9.  He entered active duty on 1 June 2011 and successfully completed the Warrant Officer Candidate School (WOCS).  He was honorably released from active duty on 6 July 2011.

10.  On 7 July 2011, he executed a DA Form 71 (Oath of Office – Military Personnel) as well as an NGB Form 337 (Oaths of Office) for appointment as a WO in the TXARNG.

11.  On 30 December 2011, NGB published SO Number 352 AR extending him Federal recognition for initial appointment in the TXARNG effective 7 July 2011.

12.  He attended and successfully completed WOBC at the U.S. Army MP School from 15 August to 16 September 2011.

13.  On 4 April 2012, the TXARNG published Orders 095-1128 awarding him MOS 311A (CID Special Agent).  This was followed by NGB SO Number 113 AR extending him Federal recognition for this MOS.

14.  An advisory opinion was obtained from NGB on 14 May 2013 in the processing of this case.  An NGB official recommended disapproval of the applicant's request and stated:

	a.  The applicant states that he was an MSGT/E-7 in the USAF for 4 1/2 years and an SFC/E-7 in the ARNG for 5 months.  In December 2006 he took a voluntary rank reduction to SGT/E-5, which he states was required by 1149th MP Detachment, CID, unit policy.  He had to take a rank reduction in order to attend the U.S. Army CID Special Agent Course in May 2007.  He believes that NGB Policy Memorandum Number 07-026 and National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) should apply to him for promotion eligibility to CW2 immediately following WOBC because he had been an SFC/E-7 for over 4 years prior to his voluntary rank reduction.

	b.  As outlined in National Guard Regulation 600-101, table 7-1, the minimum time in grade (TIG) from WO1 to CW2 is 2 years and the military education as shown in table 7-2 is WOBC or equivalent certification within 2 years of initial appointment date to WO1, which for the applicant was 7 July 2011.  The Soldier must keep in mind that eligibility for promotion does not mean automatic promotion to the next higher grade.  National Guard Regulation 600-101, paragraph 7-2, states, in part, "Promotions will be based on:  DA MOS proponent certification (satisfactory completion or constructive credit of appropriate level of military education); time in grade; demonstrated technical and tactical competence; and potential for service in the next higher grade as determined by a Federal Recognition Board.  Promotion will not be used solely as a reward for past performance."

	c.  According to NGB WO Policy Branch, the applicant is not eligible for promotion under NGB Policy Memorandum Number 07-026.  His TIG as an E-7 was not under CID and he accepted a voluntary reduction to become CID.  Paragraphs 1 and 2 of the referenced memorandum allow for appointment to CW2 for SFC/E-7's with a minimum of 2 consecutive years with two options:  "(1) SFC who is certified by the DA Military Occupational Specialty (MOS) proponent prior to the date of initial appointment (attendance at WOBC not required) may be appointed in the grade of CW2 upon completion of WOCS.  Constructive credit for WOCS may be granted if the Soldier has satisfactorily completed an OCS within the previous five years.  (2) SFC (E7) who is eligible for MOS training may be promoted to CW2 after completion of WOCS.  Constructive credit for WOCS may be granted if the Soldier satisfactorily completed an OCS within the previous five years."

	d.  The TXARNG does not concur with this recommendation.

15.  The applicant responded to the advisory opinion on 29 May 2013.  He stated:

	a.  He reviewed the unfavorable advisory opinion from NGB and he does not concur with the opinion.  Prior to submitting a request to the ABCMR, he coordinated with Chief Warrant Officer Five E____ M____ of the TXARNG who recommended the submittal based on case-specific criteria.

	b.  As outlined in National Guard Regulation 600-101, paragraph 7-2, he believes he has met and surpassed the requirement based on DA MOS proponent certification via satisfactory completion or constructive credit of appropriate level of military education, time in grade, demonstrated technical and tactical competence, and potential for service in the next higher grade.  He believes the training, experience, and education he possesses exceeds the minimum requirements to be eligible for promotion established under NGB Policy Memorandum Number 07-026.

	c.  He served in the rank of MSGT/E-7 in the USAFR Security Forces career field (MP) for over 4 years immediately prior to enlisting into the TXARNG.  The senior noncommissioned officer (NCO) military educational requirement in the USAF prior to being promoted to the rank of MSGT/E-7 is commensurate to that of the educational requirement of the U.S. Army for promotion to the rank of SFC/E-7.  In the rank of MSGT, he managed personnel, resources, and conducted felony investigations in the continental United States and deployed environments that would be equivalent to the responsibilities of an SFC in the U.S. Army CID MOS.  During that time, he was selected over his peers in a deployed environment to manage the 380th Expeditionary Security Forces Squadron as the NCO in charge (NCOIC), responsible for the overall security of the Air Base and all personnel and assets assigned.

	d.  He volunteered as the Security Forces Criminal Investigator and completed Reports of Investigations that included several successful criminal investigations, including solving a sexual assault with an unidentified suspect at the initial time of report.  Shortly after returning from deployment, he was appointed as the Combat Arms Superintendent responsible for managing the 433rd Air Wing's Small Arms Weapon Qualification Program, training over 2,600 airmen annually, as well as managing ranges, firearms, munitions, and associated resources to conduct training.

	e.  The decision to pursue a TXARNG WO career was based not only on the USAFR not having a WO rank for a technically-skilled expert, but also the opportunity to serve in a position where his skills, education, and experience would be best served and compensated.  In July 2006, he enlisted in the TXARNG as an SFC/E-7 and his intent was to become an accredited CID WO.  After enlisting in the TXARNG, he attended the Army Warrior Transition Course and he was selected over his peers as the Student First Sergeant, responsible for over 400 Soldiers.  He was awarded an Army Achievement Medal for meritorious service and awarded the First Sergeant Manuel Armijo Leadership Award for his actions.  After completing training and returning to his duty station in December 2006, he adhered to the 1149th MP Detachment, CID, unit-based policy requiring a voluntary reduction in grade.  He completed CID MOS training in August 2007 and subsequently became an accredited CID agent after serving a year-long deployment in Iraq.  He completed WOCS in July 2011 and WOBC in September 2011.

	f.  The unit-based policy requiring a Soldier's reduction in grade prior to attending MOS training is not required by CID, is not consistent with other ARNG CID component policy, and is not supported by regulation from higher command authority.  If the reduction in grade were not required by unit policy, he would have met TIG requirements in the CID MOS, he would have been certified by the DA MOS proponent prior to the date of initial appointment, and he would have been eligible to be considered for promotion to CW2 upon completion of WOBC in accordance with NGB Policy Memorandum Number 07-026.

	g.  He believes the intent of the NGB policy memorandum is to encourage Soldiers who have served a minimum of 2 years in the rank/grade of SFC/E-7 to choose a WO career path that will exemplify the Army's Standards of Excellence and promote a viable opportunity for experienced leaders.  He feels his actions while serving in the rank of MSGT/E-7 in the USAFR and as an SFC/E-7 in the TXARNG met the requirements and the intent of the NGB policy memorandum.

16.  National Guard Regulation 600-101 prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO's in the ARNG is a function of the State.  As in original appointments, a WO promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Promotions will be based on the DA MOS proponent certification via satisfactory completion of appropriate level of military education, TIG, demonstrated technical and tactical competence, and potential for service in the next higher grade as determined by a Federal Recognition Board.  A WO must complete the minimum years of promotion service as shown in table 7-1 (2 years in the lower grade for promotion to CW2) and the educational requirements of table 7-2 (completion of WOBC) of national guard regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards, as well as pass the fitness test.

17.  NGB Policy Memorandum Number  07-026 provides that States are authorized to appoint Soldiers in the rank/grade of SFC/E-7 to the rank/grade of CW2/W-2 effective 14 August 2007.  An SFC who has served a minimum of 2 consecutive years as an SFC may be appointed to CW2 in one of two ways:

	a.  An SFC who is certified by the DA MOS proponent prior to the date of initial appointment (attendance of WOBC not required) may be appointed in the grade of CW2 upon completion of WOCS.  Constructive credit for WOCS may be granted if the Soldier has satisfactorily completed an OCS within the previous 5 years.

	b.  An SFC who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.  Constructive credit for WOCS may be granted if the Soldier satisfactorily completed an OCS within the previous 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant previously served in the USAFR in the rank/grade of MSGT/E-7.  He enlisted in the TXARNG in the rank/grade of SFC/E-7 on 28 July 2006.

2.  He volunteered to become a WO in the ARNG and accepted a voluntary reduction in grade from SFC/E-7 to SGT/E-5 on 16 December 2006.  He subsequently completed WOCS in the rank/grade of SGT/E-5 on 6 July 2011.  Following completion of WOCS, he was appointed as a WO in the TXARNG on 7 July 2011.  He also completed WOBC on 16 September 2011.

3.  The applicant's service in the rank/grade of SFC/E-7 was not under CID.  He took a voluntary reduction in order to become CID.  An SFC who is certified by the DA MOS proponent prior to the date of initial appointment (attendance at WOBC is not required) may be appointed in the grade of CW2 upon completion of WOCS.  Constructive credit for WOCS may be granted if the Soldier has satisfactorily completed an OCS within the previous 5 years.  Additionally, an SFC/E-7 who is eligible for MOS training may be promoted to CW2 after completion of WOCS.

4.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  National Guard Regulation 600-101, paragraph 7-2, states, in part, "Promotions will be based on:  DA MOS proponent certification (satisfactory completion or constructive credit of appropriate level of military education); time in grade; demonstrated technical and tactical competence; and potential for service in the next higher grade as determined by a Federal Recognition Board.  Promotion will not be used solely as a reward for past performance."

5.  He was appointed as a WO on 7 July 2011 and his PED per National Guard Regulation 600-101 is 7 July 2013.  Therefore, neither the adjustment of his PED to 16 September 2011 nor promotion to CW2 with entitlement to back pay and allowances is warranted at this 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 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)                                         AR20120013686



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120013686



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1