IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130011504 


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 date of rank (DOR) for promotion to Chief Warrant Officer Three (CW3) from 5 June 2013 to 1 November 2010.

2.  He states:

	a.  he was selected for promotion to the rank of CW3 in 2010 while he was serving on active duty.  The promotion would have been effective in October 2010 and he would have incurred an additional 2-year service obligation.

	b.  he had already accepted a full-time position with the Arizona Army National Guard (AZARNG) when the recruiter told him that he would be promoted to CW3 upon his arrival in Arizona.  As a result, he turned down the promotion to take the full-time job with the AZARNG.  Upon his arrival he was told he was misinformed and he could not be promoted until he completed the Warrant Officer Advanced Course (WOAC).  The first available course date in the State was 2 years later.

	c.  he was not promoted to CW3 until 4 June 2013.  He would like his promotion backdated to 1 November 2010.  This would still be after he would have been promoted on active duty, but it puts him back with his peer group from Warrant Officer Candidate School for future promotions.


	d.  he was never allowed the opportunity to attend WOAC while on active duty.  He was told it was not a requirement to make CW3.  When he entered the AZARNG, he was told he could not be promoted without completing the course.  He was to deploy to Afghanistan and he was told he could leave pre-mobilization training at Fort Hood, TX to attend the course; however, he was not allowed to attend the course.  A request for a waiver was initially denied by the National Guard Bureau (NGB).  He filed an Inspector General (IG) complaint citing an email from a general officer who clearly stated WOAC is not a requirement to be promoted to CW3.

	e.  after a 15-month deployment, he was sent to Fort Rucker, AL to be a flight instructor on the flight line.  Instructors were rarely allowed to go to professional development courses due to the backlog of students.

3.  He provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the AZARNG in the rank of CW3.

2.  After having prior enlisted service in the Regular Army, the applicant was appointed as a Reserve warrant officer on 12 March 2004 and entered active duty.

3.  He completed the Aviation Basic Warrant Officer Course on 13 January 2005.

4.  He was promoted to Chief Warrant Officer Two (CW2) with an effective date and DOR of 12 March 2006.

5.  He served in Iraq from 27 July 2006 to 24 September 2007.

6.  On 13 January 2011, he was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5 for miscellaneous/general reasons.  His DA Form 67-9 (Officer Evaluation Report) for the period ending 13 January 2011 shows his rank as "CW2P" with a DOR of 12 March 2006.

7.  On 14 January 2011, he was appointed as a Reserve warrant officer in the rank of CW2 and he was granted Federal recognition.


8.  On 15 July 2011, he was ordered to active duty in support of Operation Enduring Freedom.  He was honorably released from active duty (REFRAD) on 13 May 2013 at the completion of required active service.

9.  In a 29 January 2013 memorandum, the Acting Chief, Personnel Policy Division, NGB recommended approval of the exception to policy for the applicant's promotion to CW3 prior to the completion of WOAC.  The official stated the applicant's DOR would be no earlier than the date of this memorandum.  This waiver was approved because the applicant was within the 6-year maximum promotion criteria, he has completed the distance learning (DL) phase of WOAC, and he obtained a reservation for the active duty phase of the course.

10.  He served in Afghanistan from 15 December 2012 to 28 April 2013.  He was honorably REFRAD on 17 May 2013 and returned to his AZARNG unit.

11.  A memorandum, dated 11 June 2013, shows he was promoted to CW3 with an effective date and DOR of 5 June 2013.  

12.  NGB Special Orders Number 145 AR, dated 11 June 2013, extended the applicant Federal recognition for the purpose of promotion to CW3 with an effective date of 5 June 2013.

13.  On 17 July 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request.  The advisory official reiterated some of the applicant's contentions and referenced National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), Table 7-2 that states "Completion of the common core prerequisite correspondence studies administered by the Total Army Warrant Officer Career Center, Fort Rucker, the duty MOS (military occupational specialty) WOAC, or equivalent, is required for promotion consideration to CW3."  The advisory official further stated:

	a.  the applicant received an exception to policy in order to be promoted to CW3 due to mobilization and reaching the 6-year maximum promotion criteria prior to completing WOAC.

	b.  in review of this case, there was no error regarding the applicant's promotion.  The AZARNG acted within the guidelines of the regulation and policy.  Unfortunately, the applicant was misinformed by a recruiter.


	c.  therefore, it is recommended that no administrative relief be authorized in this case.  However, it is suggested that AZARNG re-train recruiters in the differences between the promotion scale when a Soldier enters the National Guard from other military agencies.  The AZARNG concurred with the recommendation.

14.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 30 July 2013 he responded to the advisory opinion.  In rebuttal, he stated:

	a.  he has received all "Satisfactory," if not "Outstanding" Officer Evaluation Reports in almost 9 years of service.  He served as an AH-64D Instructor Pilot for Flight School while deployed to combat zones.

	b.  he prepared for promotion to CW3 when he reported to Fort Rucker in 2008.  When he inquired about WOAC he was told there was a backlog of students waiting for the AH-64D course and instructors were not authorized to leave in order to attend WOAC.  He was also told he would be promoted to CW3 without the course.  He was promotable to CW3 in 2010 and he would have been pinned in October [2010].

	c.  he left active duty to take a full-time position with the AZARNG.  To accept the promotion to CW3 while on active duty he would have incurred an additional 2-year service obligation.

	d.  he was informed by the AZARNG recruiter at Fort Rucker that if he refused the promotion on active duty he would quickly be promoted upon his arrival to his unit in Arizona.  After he arrived in Arizona, he was informed the ARNG would not promote him to CW3 without completion of WOAC.  He immediately applied for the course, but the earliest course date was 2 years later.  He completed the DL portion of the course and applied for an earlier course; however, his brigade would not approve any attempts to get him on a waiting list.

	e.  he felt it was unfair to withhold a promotion based on a course that was not available.  While waiting for the course date, he submitted a waiver to be promoted, but it was denied by the State of Arizona.

	f.  he was asked by his unit to deploy to Afghanistan, but this would cause him to miss the course.  He was promised he would receive a waiver for the course and he would be promoted without attending WOAC.  While preparing for deployment, he was informed that the NGB had denied the waiver.  He filed an 


IG complaint citing an email from a commanding general stating WOAC was not a requirement for promotion to CW3.  The waiver was approved and he was eventually promoted to CW3, 2 years and 8 months after he was initially eligible to be promoted.

	g.  these issues have affected both his career progression and pay.  It's unfair to see his peers be promoted while he had to wait an additional two years just to attend a promotion course.  He feels the National Guard should take the time to consider exceptions to policy.  He has worked hard his entire career and he has always sought additional leadership and responsibilities.  Additionally, he has always had the support of his chain of command and they have tried their best to help him get promoted.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes the policies and procedures for the promotion of Reserve component officers.

	a.  Paragraph 2-5 (Eligibility for Consideration) states to be eligible for consideration for promotion to the next higher grade, a U.S. Army Reserve (USAR) officer must have continuously performed service on either the Reserve Active Status List or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board and must meet the time in grade requirements, as appropriate.

	b.  Table 2-3 (Warrant officer time in grade and military education requirements) states for promotion from CW2 to CW3, the minimum time in grade (TIG) requirement is 5 years and the maximum TIG requirement is 6 years.  Note 1 states:  For selection to CW3, officers who possess a warrant officer (WO) MOS other than 001A (unqualified in a WO MOS), will be considered to have completed the minimum education level).

16.  Title 10, U.S. Code, section 14317(c), provides that an officer who is on the active duty list and is on a promotion list and who, before being promoted is removed from the active duty list and placed on the reserve active status list of the same armed force and in the same competitive category, shall be placed on an appropriate promotion list.

DISCUSSION AND CONCLUSIONS:

1.  While in the Regular Army, the applicant was selected for promotion to CW3.  Before he was promoted, he was discharged and accepted a Reserve appointment in the AZARNG on 14 January 2011.


2.  He was appointed in the Reserve as a CW2 on 14 January 2011 with a DOR of 12 March 2006.  He was no longer a Regular Army officer so he now fell under Reserve promotion criteria (i.e., maximum 6 years time in grade).  His promotion eligibility date (PED) for promotion to CW3 would have been 12 March 2012.

3.  By law he should have maintained his promotion standing when he transferred from the Active Component to the Reserve Component.  By Army Regulation 135-155, he was not required to attend WOAC for promotion to CW3.  However, he was misinformed that he had to complete the course prior to being promoted to CW3.

4.  Through no fault of the applicant, his promotion to CW3 was delayed.  He was not promoted to CW3 until 5 June 2013.  As a matter of equity, it would be appropriate to adjust the applicant's DOR from 5 June 2013 to 12 March 2012 (maximum 6 years time in grade).   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  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 partial relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 145 AR to show he was extended Federal recognition for promotion to CW3 with a date of rank of 12 March 2012.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to promoting him to CW3 with a date of rank of 1 November 2010.



      _______ _  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)                                         AR20130011504



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ABCMR Record of Proceedings (cont)                                         AR20130011504



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