BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20130000691 


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 records to show he was promoted to chief warrant officer three (CW3)/pay grade W-3 with all back pay and allowances due as a result of the correction.

 2.  The applicant states he was in a promotable status at the time his promotion packet was submitted in August 2010.  However, his promotion was denied on several occasions due his attachment to a Warrior Transition Unit (WTU).

3.  The applicant provides:

* his promotion packet
* two policy memoranda
* an Inspector General (IG) inquiry
* a Congressional inquiry
* a memorandum of support

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve warrant officer in the rank of warrant officer one in the Army National Guard (ARNG) of the United States (ARNGUS) and Pennsylvania ARNG (PAARNG) on 8 August 2003.

2.  He was promoted to chief warrant officer two (CW2)/pay grade W-2 effective and with a date of rank (DOR) of 13 November 2005.  He completed the Aviation Warrant Officer Advanced Course (WOAC) on 5 December 2007.

3.  The applicant was ordered to active duty in support of Operation Iraqi Freedom on 29 January 2009.  He served in Iraq from 16 April 2009 through 28 December 2009.

4.  Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, Orders A-04-012074, dated 21 April 2010, retained the applicant on active duty in his current reserve grade and assigned him to Company A, WTU, Fort Eustis, VA, on 9 May 2010 to participate in the Reserve Component Medical Hold Transfer for completion of medical care and treatment.  The order was amended on six occasions to adjust the period of active duty from 227 days to 1,054 days (ending on 27 March 2013).

5.  U.S. Army Support Activity, Joint Base Langley-Eustis, Fort Eustis, VA, Orders 056-0005, dated 25 February 2013, released the applicant from active duty in the rank of CW2 on 27 March 2013 based on physical disability and placed him on the Retired List in the rank/grade of CW2/W-2 effective 28 March 2013 by authority of Title 10, U.S. Code, section 1201 (10 USC 1201).

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 27 March 2013 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, based on disability, permanent (enhanced).  It shows in:

* item 4a (Grade, Rate, or Rank) – "CW2"
* item 4b (Pay Grade) – "W02"
* item 12i (Effective Date of Pay Grade) – "2005  11  13"

7.  In support of his application, the applicant provides the following documents:

	a.  a recommendation for promotion, dated 1 November 2010, which shows the applicant was recommended for promotion to CW3 in the ARNG under the provisions of National Guard Regulation 600-100 (Commissioned and Warrant Officers – Federal Recognition and Related Personnel Actions), chapter 8 (Promotion for Other Than General Officers);

	b.  a U.S. Army Physical Disability Agency, Washington, DC memorandum, dated 28 February 2005, subject:  Policy Guidance Memorandum Number 17 - Identification of Cases of Soldiers Pending Promotion or Requiring Grade Determinations, which shows that 10 USC 1372 and 10 USC 1212 have been amended to allow disability retirement or separation to be at the grade to which the Soldier would have been promoted except for the termination of his service due to physical disability; and
	c.  an Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, Washington, DC, memorandum, dated 27 January 2009, subject:  Grade of Officers when Retiring or Separating for Physical Disability, which prescribes policy for determining the retired grade of officers retired because of physical disability pursuant to 10 USC 1201 or 10 USC 1212 who would have been promoted had it not been for the physical disability for which the officers were retired.  It shows the officer will be retired in the next higher grade if the officer is:

		(1)  on an approved promotion list (and confirmed by the Senate, if required) prior to the effective date of retirement because of physical disability; or

		(2)  on a promotion nomination scroll approved by the Deputy Secretary of Defense (and confirmed by the Senate, if required) prior to the effective date of retirement because of physical disability;

	d.  a DA Form 1559 (IG General Action Request) which shows the applicant initiated an IG inquiry on 29 August 2012;

	e.  a memorandum from the Director, Office of Policy and Legislative Affairs, PAARNG, dated 13 December 2012, which informed the Honorable J____ C____, U.S. House of Representatives, that the applicant was not in a CW3 billet and, therefore, he could not be considered for promotion to CW3 until he had completed 5 years as a CW2.  He explained that the applicant achieved the necessary time in grade in August 2010 and a promotion packet was submitted; however, at the time he was assigned to the WTU.  As such, the applicant was not fully qualified because he was not eligible to fill a unit vacancy and he was not medically qualified; and

	f.  a memorandum from the Training Officer, 2nd Battalion, 104th Aviation, PAARNG, dated 31 May 2012, which shows the applicant was fully qualified and eligible for promotion to CW3 when his promotion packet was submitted in 2010.  However, it was determined at the time that he was not eligible due to his medical condition and his packet was returned without action.  He adds that based on the policy memorandum for determining the grade of officers when retiring for physical disability, the promotion packet should have been submitted to the National Guard Bureau (NGB) and he should have been promoted to CW3.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.

	a.  The advisory official recommends approval of the applicant's request for promotion to CW3 effective 14 November 2010.  The PAARNG concurs with the recommendation.

	b.  The advisory official states Joint Force Headquarters-Pennsylvania recommended the applicant for promotion to CW3 in August 2010.  At the time, he was attached to a WTU due to injuries he sustained while deployed.

	c.  The advisory official notes that the governing policy in effect at the time provided that Soldiers undergoing or pending referral to the MOS/Medical Retention Board (MMRB), medical evaluation board (MEB), or physical evaluation board (PEB) would not be denied promotion based on medical disqualification if they were otherwise qualified for promotion.

9.  The applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond; however, a response was not received.

10.  NGB Memorandum Number 05-043, dated 1 May 2005, subject:  Promotion Eligibility for Soldiers Undergoing or Pending Medical Board Action, provides that effective 20 April 2005, all Soldiers undergoing or pending referral to an MMRB, MEB, or PEB will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion.

11.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.

	a.  Table 7-1 (Minimum Time in Grade (TIG) for Promotion) shows for promotion from CW2 to CW3 the minimum TIG for promotion is 6 years; however, a warrant officer in a grade position rank coded higher than his/her current grade may be considered for promotion upon completion of 5 years in the lower grade.

	b.  Table 7-2 (Minimum Military Educational Requirements for Promotion and Time in Current Grade Required for Course Enrollment) shows for promotion to CW3, completion of the common core prerequisite correspondence studies and the duty MOS WOAC or equivalent is required.

DISCUSSION AND CONCLUSIONS:

1.  The governing regulations provide that the minimum TIG for promotion to CW3 is 5 years provided the officer has completed WOAC and is assigned to a higher-graded position than his/her current grade.

2.  The evidence of record shows the applicant was recommended for promotion to CW3 on 1 November 2010 and the earliest date he was eligible for promotion was 13 November 2010.

3.  The applicant was not promoted to CW3 by the PAARNG or granted Federal recognition by the NGB because he was attached to a WTU for the purpose of medical care and treatment at the time of his eligibility for promotion.

4.  The evidence of record shows policy was implemented directing that all Soldiers undergoing or pending referral to an MMRB, MEB, or PEB will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion.  Policy was also implemented directing that officers retired because of physical disability pursuant to 10 USC 1201 who would have been promoted had it not been for the physical disability for which the officer was retired will be retired in the next higher grade.

5.  In view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show he was promoted to CW3 in the Reserve of the Army, ARNGUS, and PAARNG effective and with a DOR of 13 November 2010 and that he was retired in the grade of CW3/W-3 effective 28 March 2013.

BOARD VOTE:

___x_____  __x______  _x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

	a.  showing he was promoted to the rank of CW3/W-3 effective and with a DOR of 13 November 2010;

	b.  granting him Federal recognition in the rank of CW3/W-3 effective and with a DOR of 13 November 2010;

	c.  correcting his DD Form 214 for the period ending 27 March 2013 by deleting the entries from:

* item 4a and adding "CW3"
* item 4b and adding "W03"
* item 12i and adding "2010  11  13"

	d.  placing him on the Retired List in the rank/pay grade of CW3/W-3 effective 28 March 2013.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination to remit all active duty and all retired back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of this correction.



      __________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)                                         AR20130000691



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ABCMR Record of Proceedings (cont)                                         AR20130000691



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