IN THE CASE OF:	  

		BOARD DATE:	    16 July 2013

		DOCKET NUMBER:  AR20120019774 


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 correction of his date of rank (DOR) to chief warrant officer two (CW2) from 13 July 2012 to 30 April 2010.

2.  The applicant states:

	a.  Promotion from warrant officer one (WO1) to CW2 is supposed to be an automatic promotion.  As of 30 April 2010, he was duty military occupational specialty qualified (DMOSQ) and had well over 2 years time in grade (TIG).  Due to unit transfers, paperwork mishandling, and processing times, his promotion did not occur until 23 July 2012 with a DOR of 13 July 2012.  

	b.  In early 2008, while attending flight school at Fort Rucker, AL, his spouse realized she could not emotionally or mentally handle his being an Apache pilot considering the mission it entailed.  In April 2008, he contacted his company, Company B, 1st Battalion, 135th Aviation Regiment, Whiteman Air Force Base (AFB), MO, and explained the situation.  He told them he wanted to remain with the Missouri Army National Guard (MOARNG) but he needed a different assignment.  He was told the unit would take care of him and most likely he would be transferred to a Blackhawk unit.

	c.  He didn't hear anything from the unit and followed up on it in June 2009.  He was told the unit might be receiving different aircraft so he might not need to transfer.  None of this came through and his request for a transfer finally happened in June 2010 when he was moved to Company C, 1st Battalion, 106th Aviation Regiment, Fort Leonard Wood, MO.
	d.  After transferring to Company C, 1st Battalion, 106th Aviation Regiment, paperwork was submitted for his promotion to CW2 on multiple occasions.  He was told the paperwork was lost, or incomplete, or returned.  Between each communication, months would pass while the paperwork was being processed.  This went on until September 2011 when he was told his packet was at the State level but was being held pending the outcome of his security clearance.  At that time, he was in the 10-year window of his secret clearance renewal.

	e.  His clearance was processed by the end of 2011 and he was told his packet should make the January 2012 State promotion board.  His packet was approved by the State promotion board on 16 March 2012 and he was granted Federal recognition for CW2 on 23 July 2012 with a DOR of 13 July 2012.  

3.  The applicant provides a DA Form 1059, two certificates, two memoranda, five orders, and a page titled Promotion Eligibility and Qualification Requirements.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as an Aviation (AV) Corps WO1 in the MOARNG and executed an oath of office on 7 December 2007.  

2.  He attended and successfully completed the Aviation WO Basic Course (WOBC) from 8 December 2007 to 5 August 2009 at Fort Rucker, AL.  Upon completion of WOBC, he was awarded MOS 153D (UH-60 Pilot).

3.  On an unknown date, having met all the regulatory requirements, he was recommended for promotion to CW2 by his immediate commander.

4.  On 16 March 2012, the MOARNG published Orders Number 076-148 promoting him to CW2 with a DOR and effective date of 15 March 2012.  

5.  On 23 July 2012, the National Guard Bureau (NGB) published Special Orders Number 261 AR extending him Federal recognition for promotion to CW2 with a DOR and effective date of 13 July 2012.

6.  On 7 June 2013, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended approval of the applicant's request to adjust his DOR to CW2 from 13 July 2012, recommended his DOR be adjusted to 7 December 2009 with payment of all back pay and allowances due as a result of the correction, and opined that:   
	a.  The applicant stated due to a variety of administrative errors his promotion package to CW2 was delayed.  In April 2008, while in flight school, the applicant requested a transfer through his unit due to unexpected hardships affecting his family.  For unknown reasons, his request did not take effect until June 2010 when he moved to Fort Leonard Wood, MO.  By this time, he had obtained more than the minimum TIG as a WO1 needed for promotion to CW2.  This is supported by his signing an NGB Form 337 (Oaths of Office) on 7 December 2007.  In accordance with National Guard Regulation (NGR) 600-101 (WO - Federal Recognition and Related Personnel Actions), the effective date of Federal recognition is the date the WO executes the oath of office.

	b.  Department of the Army, Office of the Deputy Chief of Staff G-1, Amendment to Policy Memorandum, dated 14 January 2005, in pertinent part, states all Reserve Component (RC) officers (USAR and ARNG) in the rank of second lieutenant will be promoted to the rank of first lieutenant by the U.S. Army Human Resources Command (HRC) or the NGB, as appropriate, when they meet the 24 month TIG for promotion and complete the officer basic course.  This would also apply to WO1 which would be promoted to CW2 when they meet the 24 months TIG requirement for promotion and complete the WOBC.

	c.  The applicant completed the WOBC on 5 August 2009.  In accordance with NGR Regulation 600-101, table 7-1 and table 7-2, upon completion of WOBC he was eligible for promotion to CW2.  His DOR and promotion effective date to CW2 should be amended to reflect 7 December 2009, 2 years from the date he was appointed as a WO1.

	d.  This is supported by information provided in an email, dated 22 April 2013, from an NGB Aviation Division official, wherein the official stated "When a WO graduates from flight school, they are considered DMOSQ…Since the applicant was assigned to an operational flight position, he maintained his flight status medically, he (the NGB official) was erring on the side of the applicant…In summary, the applicant was DMOSQ at the time he was eligible for promotion, and he was eligible to be promoted 7 December 2009.

	e.  The State concurred with this recommendation.

7.  On 10 June 2013, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments; however, he did not respond.

8.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of RC officers. Table 2-3 states a WO may be promoted to CW2 upon completion of a minimum of 2 years in the lower grade and will be considered for promotion to CW2 by a mandatory board upon completion of 2 years in the lower grade.

9.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that ARNG WOs are initially appointed and are also promoted by the State or Territory to which the officer is assigned.  The Chief, NGB, reviews and approves those actions.  Title 10, U.S. Code, sections 571b and 12241b, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's and promotion to higher grades by warrant or commission will be issued by the President.  This authority has been delegated to the Secretary of Defense via executive order.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was appointed as a WO1 in the MOARNG on 7 December 2007 and that he met the minimum time-in-grade and education requirements and was fully eligible for promotion to CW2 on 7 December 2009.  Although it is not known when his immediate commander recommended him for promotion, the evidence of record shows, through no fault of his own, his promotion packet was unduly delayed by the unit; apparently for a period well over 2 years.  As a result, he was not extended Federal recognition for promotion to CW2 until 23 July 2012, with an effective date and DOR of 13 July 2012. 

2.  Although promotion to CW2 is not automatic, the advisory official confirmed, and the State where the error occurred verified, that if his promotion packet had been processed in a timely manner, the applicant could have been promoted to CW2 on 7 December 2009.  The delay was due to a unit error, which was not within the applicant's control; therefore, it would be appropriate to adjust his DOR to CW2 to 7 December 2009.

3.  Notwithstanding the advisory opinion that the applicant's effective date of promotion should be amended to 7 December 2009 with payment of all back pay and allowance due as a result of this correction, any correction by the Army Board for Correction of Military Records (ABCMR) must comport with other laws. The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.
4.  Consequently, based on the authorities cited above, any correction to the applicant's effective date of promotion to CW2 would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Therefore, no action will be taken to amend the effective date of his promotion to CW2.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 261 AR, dated 23 July 2012, to show his adjusted DOR to CW2 as 7 December 2009. 



      _______ _   _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)                                         AR20120019774





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ABCMR Record of Proceedings (cont)                                         AR20120019774



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