IN THE CASE OF:  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20130012162 


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) to chief warrant officer five (CW5) in the North Dakota Army National Guard (NDARNG) from 26 August 2010 to 22 November 2009. 

2.  The applicant states he was recommended for promotion in accordance with National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) on 30 October 2009.  He was occupying a CW5 position, accomplishing the job, and a control grade was available.  He met the time in grade requirements and became fully qualified on 22 November 2009.  His promotion was delayed for several months through no fault of his own.  After exhausting all means of addressing this issue within the ARNG, he filed a complaint with the National Guard Bureau (NGB) Inspector General (IG) whose investigation was found in his favor.  He was ultimately promoted on 26 August 2010. 

3.  The applicant provides:

* NGB IG findings 
* State promotion order
* NGB Federal Recognition Special Orders (SO) Number 189 AR
* Unit recommendation memorandum
* Reserve promotion memorandum
* DA Form 1059 (Service School Academic Evaluation Report)


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve warrant officer of the NDARNG and executed an oath of office on 5 September 1991.  He holds an aviation specialty.  

2.  He served in a variety of assignments and he was promoted to chief warrant officer four (CW4) on 22 November 2004.  

3.  On 28 April 2008, the NDARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

4.  He completed the Warrant Officer Senior Staff Course (WOSSC) at Fort Rucker, AL, from 6 to 17 April 2009. 

5.  On 30 October 2009, the NGB Chief of Aviation and Safety Division submitted a memorandum to the NDARNG recommending the applicant for promotion to CW5.  The recommending official state the applicant met the criteria for promotion.  

6.  On 1 July 2010, a Federal Recognition Board was held by the NDARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW5.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FRB also recommended that he be granted Federal recognition.   

7.  On 12 August 2010, the SDARNG published Orders 224-422 promoting the applicant to CW5, effective 26 August 2010. 

8.  On 30 August 2010, the NGB published SO Number 189 AR extending him Federal recognition for promotion to CW5 with an effective date and date of rank of 26 August 2010. 

9.  On 28 December 2010, the NGB IG responded to the applicant's original request for assistance regarding his delayed promotion to CW5.  The IG determined that:

* at the time his supervisor recommended him for promotion, he met the minimum requirement for promotion, military education, and placement into an appropriately allocated CW5 control-graded position 
* the actioning of his promotion recommendation to his state stalled due to a series of events related to the promotion recommendation process
* the issue that his promotion was not handled in accordance with NGR 600-101 is founded
* as a result of this inquiry, a promotion recommendation was forwarded to the State on 13 July 2010 and the state promotion was effected on 26 August 2010 which led to a Federal recognition SO Number 189 AR

10.  An advisory opinion was obtained on 18 April 2013 from the NGB in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  The advisory official stated:

	a.  The applicant met the minimum eligibility requirements for promotion to CW5 upon competing WOSSC.  He met the minimum time in grade and military education requirements, and he was allocated a CW5 control-graded position.  Prior to his promotion, a recommendation for promotion from the NGB and an additional temporary duty assignment position was required.  The required documentation was received by the NDARNG on 14 July 2010.  The State produced the promotion order on 12 August 2010 with an effective date of 26 August 2010.  

	b.  The applicant is a Title 10 Active Guard Reserve (AGR) Soldier assigned to the NGB.  NGR 600-101 states in paragraph 7-11 that the recommendation for promotion of 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.  

	c.  Although the applicant met the minimum requirements for promotion to the higher grade, there is no expectation that promotions are automatic upon achieving promotion requirements.  Regardless of the fact that the applicant's promotion packet was delayed at the NGB, the promotion still would have been no earlier than the date of the Federal recognition order which is dated 12 August 2010. 

	d.  The state ARNG contends that had they received the promotion request when initially recommended, they would have held a board prior to the 
22 November 2009 eligibility date.  

11.  The applicant was provided with a copy of this advisory opinion but he never responded. 

12.  NGR 600-101 prescribes the policies and procedures for the management of officers of the ARNG.  Chapter 7 contains promotion policy and states, in pertinent part, that in order to be eligible for promotion to CW5, a member must be in an active status and be MOS qualified.  He/she must also be medically fit and meet the height/weight requirements, have completed the minimum years of promotion service, have completed the military education requirement (completion of WOSSC), and have passed the APFT within the time frame prescribed.  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 qualifications are not in question; however, being fully eligible for promotion does not mean the officer is automatically selected for promotion.  It appears the applicant's supervisor recommended him for promotion to CW5 via a memorandum on 30 October 2009.  However, it is unclear what the disposition of this recommendation was.  

2.  The available evidence shows an FRB convened on 1 July 2010.  The FRB indicated the applicant was satisfactory and also recommended that he be granted Federal recognition.  A state promotion order was published on 12 August 2010 with an effective date of 26 August 2010.  The resulting action was that on 30 August 2010, the NGB published SO Number 189 AR extending him Federal recognition for promotion to CW5 with an effective date and date of rank of 26 August 2010. 

3.  Regretfully, although recommended in October 2009 and becoming qualified in November 2010, the state FRB was not aware of this recommendation until July 2010 when it was held and found him qualified for promotion.  

4.  Notwithstanding the applicant's sincerity and the IG's findings, there is insufficient evidence to support granting the applicant an earlier date of rank.  

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)                                         AR20130012162





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ABCMR Record of Proceedings (cont)                                         AR20130012162



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