IN THE CASE OF:	  

		BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20130020423 


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 an adjustment of his date of rank (DOR) to chief warrant officer three (CW3) in the Arizona Army National Guard (AZARNG) from 19 February 2013 to 27 February 2012.

2.  The applicant states:

   a.  The error occurred under the belief that he must attend the Warrant Officer Advanced Course (WOAC) in order to be promoted to CW3.  According to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) this is not a requirement.  His maximum time in grade (TIG) should be 6 years, making his DOR no later than 27 February 2012. He attempted to attend the course, but he was denied or dropped from classes due to a lack of funding or available seating in the course.  He submitted a waiver to be promoted without the course which was supported by the Command Chief WO for the State of Arizona, but it was returned without action.

   b.  This error occurred even though he had been promoted to CW3 while in the Regular Army (RA), but he declined the promotion to avoid an additional obligation so he could take a job with the AZARNG.  ARNG recruiters told him that he would be promoted within a few months of being assigned to the ARNG.  However, after being assigned he was told it was a requirement to attend WOAC, but there was no available class for at least 18 months.

   c.  His civilian education should suffice for the advanced course since he had already met the requirements for promotion to CW3 previously.  It should not have been a problem to promote him in the ARNG.  Many of his peers were promoted without this course and now have much more TIG than he does.  They will be promoted to chief warrant officer four (CW4) ahead of him.  

   d.  This is something that not only affects his pay but could affect his career opportunities.  He has received all "Outstanding" officer evaluation reports (OER) (many of which stated "send him to the advanced course)" and he has always sought duties of increased responsibilities.  It is unfair to withhold a promotion based on a course that was unavailable for him to attend and beyond the time frame allowed by Army Regulation 135-155.  He would have been promoted in October 2010 had he not originally declined the promotion.  He is requesting a DOR no later than 27 February 2012 based on the maximum 6-year TIG authorized by Army Regulation 135-155.

3.  The applicant provides copies of the following:

* Order Number 018-050
* Nine DA Forms 67-9 (OER)
* Declination of Promotion memorandum
* Oaths of Office
* Army Training Requirements and Resources System (ATRRS) Portal screen print
* Email from ATRRS Automated Training Application Module (AATAM)
* Memorandum, Requesting Promotion to CW3 Based on Military and Civilian Education Prior to Completing the Professional Military Education (PME) Course in Fiscal Year 2013 (FY13)
* Exception to Policy (ETP) memorandum, endorsement of promotion
* Memorandum, Request for Military Education Waiver 
* Embry-Riddle Aeronautical University Official Transcript
* CW3 promotion memorandum
* Army Board of Correction of Military Records (ABCMR) Record of Proceedings (ROP) pertaining to another individual

CONSIDERATION OF EVIDENCE:

1.  The applicant completed the WO Basic Course (WOBC) on 27 February 2004.  He was appointed as a U.S. Army Reserve Army WO, on 27 February 2004, with prior enlisted service, entered active duty that date, and he held an aviation (pilot) military occupational specialty (MOS).  

2.  Order Number 018-050, issued by the U.S. Army Human Resources Command (HRC), dated 18 January 2006, promoted him to CW2 with an effective date and DOR of 27 February 2006.  
3.  He provided copies of six DA Forms 67-9, dated between 2006 and 2010, which show he was assessed as "Outstanding Performance, Must Promote" and "Best Qualified."  They were also annotated with the comments "promote to CW3 ahead of peers and send to WOAC."

4.  On 13 April 2010, he submitted a request for an unqualified resignation from the Army with an effective date of 30 May 2011.  

5.  He also provided a copy of a Declination of Promotion to CW3 memorandum, dated 30 June 2010, which shows his request for declination of promotion to CW3 was approved and he was advised that his name was deleted from the 
FY10 CW3 Aviation Category Promotion Selection List. 

6.  On 19 October 2010, his unqualified resignation was approved.  Accordingly, he was honorably discharged from active duty in the rank of CW2 on 30 May 2011.

7.  He was appointed in the AZARNG as a CW2 on 31 May 2011.

8.  On 6 January 2014, he was appointed in the PAARNG and is currently serving in an active status.

9.  He also provided the following:

   a.  Three DA Forms 67-9, dated between 2010 and 2013, which show he was assessed as "Outstanding Performance, Must Promote" and "Best Qualified."  They were also annotated with the comments "Promote to CW3 and send to the WOAC."

   b.  A memorandum, dated 29 March 2012, Subject:  Request for Promotion to CW3 Based on Military and Civilian Education Prior to Completing the PME Course in FY13, wherein he stated:

		(1)  "If promoted to CW3 prior to completion of the required PME, I agree to attend the course in FY13."

		(2)  He was currently confirmed in a class with a start date of 3 March 2013 and he had completed 50 percent of the distance learning.

		(3)  While on active duty he was denied the required PME Course because it was not a requirement to attend the course prior to promotion and there was a lack of funds preventing the unit from sending him to the course from Germany.
		(4)  He was on active duty for 8 years and 7 years were served overseas, including 2 combat deployments to Iraq and Afghanistan.

		(5)  He was selected for promotion to CW3 while on active duty, but declined the promotion in order to enlist with the AZARNG.  He had over 6 years of time in rank and his DOR was 27 February 2006.

   c.  A memorandum, dated 30 March 2012, Subject:  Endorsement of Promotion-ETP for (the applicant) wherein the Command Chief WO, Joint Forces Headquarters, AZARNG, endorsed an ETP for the applicant's promotion.  The Command Chief WO stated:

		(1)  Based on the verification within the State G-3 and ATRRS screen prints the applicant had all of the other required WO PME courses completed except the Reserve Component (RC) Aviation WOAC for promotion to CW3.

		(2)  Following completion of all other aviation specific courses and the Action Officer Course, the applicant was enrolled in Phases 1 and 2 of the Aviation WOAC (AWOAC)-RC (September 2011).

		(3)  Unfortunately, the applicant was cancelled from attending Phase 2 of the AWOAC-RC in September 2012.  This cancellation was due to available seats and funding for National Guard quotas in FY12.  The applicant had a reserved seat to attend Phase 2 in March 2013, but must complete Phase 1 no later than 13 September 2012.

		(4)  In his opinion, the applicant had completed all other required PME Courses and his service record was exemplary.  The applicant should be promoted as soon as possible and would be able to complete his PME in the second quarter of FY13.

   d.  A memorandum, dated 11 July 2012, Subject:  Request for Military Education Waiver, wherein the Officer Personnel Manager, Joint Forces Headquarters, AZARNG, stated:

		(1)  The applicant's request for a waiver for promotion to CW3 prior to completion of his WOAC was returned without action.

		(2)  Based on a review of the applicant's military record, there was no indication he was selected to attend the course and it was cancelled due to funding or deployment.  However, the applicant was currently enrolled in the course.  The applicant would be fully eligible for promotion upon successful completion.
   e.  An ATRRS Portal print screen which shows he had a total of 
three reservations to attend the AWOAC, Fort Rucker, AL, with the following report dates:  3 January 2012, 16 September 2012, and 3 March 2013.

   f.  Email correspondence from the AATAM, dated 2 August 2012, wherein he was advised of the disapproval of his application for WOAC with a start date of 
2 October 2012, due to the lack of NG seats.

   g.  An Embry-Riddle Aeronautical University Official Transcript, dated 27 August 2012, which shows his academic record from October 2008 to January 2011.

   h.  His CW3 promotion memorandum, dated 21 February 2013, which shows he was promoted to CW3 in the AZARNG with an effective date and DOR of 19 February 2013.

   i.  An ABCMR ROP, dated 8 October 2013, pertaining to another individual who petitioned the Board for an adjustment of his DOR for promotion to CW3 from 5 June 2013 to 1 November 2010.  The Board stated:

		(1)  While in the RA, that individual 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)  The individual was appointed in the Reserve as a CW2 with a DOR of 12 March 2006.  He was no longer an RA officer so he now fell under the Reserve promotion criteria (i.e., maximum TIG years).  His promotion eligibility date 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 RC.  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 individual, 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 TIG).

		(5)  The Board recommended that the State ARNG records and Department of the Army records be corrected by amending that individual's National Guard Bureau (NGB) Special Orders to show the individual was extended Federal Recognition for promotion to CW3 with a DOR of 12 March 2012.  

		(6)  The Board denied so much of that individual’s request pertaining to promotion to CW3 with a DOR of 1 November 2010.

10.  In an advisory opinion, dated 30 May 2014, the Chief, Personnel Policy Division, National Guard Bureau (NGB), recommended disapproval of the applicant's request for an adjustment of his DOR for CW3 to 27 February 2012 from 19 February 2013.  The NGB official stated:

   a.  The applicant stated that he was selected for promotion to the rank of CW3 in 2010 while serving on active duty, but declined the promotion on 30 June 2010 to avoid an additional obligation.  He was appointed in the AZARNG in the rank of CW2 on 31 May 2011 without a break in service.

   b.  The applicant also stated that he was misinformed by the AZARNG recruiter; he was told that his promotion to CW3 would be within a few months of being assigned to the ARNG.  Further, the applicant contends that he was led to believe that he did not lack the necessary requirements for promotion to CW3 in the AZARNG.  As a result, the applicant turned down the active duty promotion and accepted the Active Guard Reserve position with the AZARNG.

   c.  Upon transfer to the AZARNG, the applicant stated that he was misinformed regarding the requirements to attend WOAC prior to being recommended for promotion to CW3.  He stated that he attempted to attend the course, but there was no seat available to that course until 18 months later.

   d.  In accordance with (IAW) National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions), dated 1 October 1996, Table 7-2, completion of the common core prerequisite correspondence studies administered by the Total Army WO Career Center, Fort Rucker, AL, and the duty military occupational specialty (MOS) WOAC, or equivalent, was required for promotion consideration to CW3.  The applicant submitted a waiver to be promoted without the course, but it was returned without action by an Officer Personnel Manager in the State of Arizona.

   e.  IAW National Guard Regulation 600-101, chapter 7-9e (military education requirements), aviation rated commissioned officer subsequently appointed as rated WOs are granted constructive credit for the AWOAC provided they have completed the Aviation Advanced Course within 7 years from date of appointment as a WO.

   f.  Although the applicant met the TIG requirement for promotion to CW3 upon jointing the AZARNG, he did not meet all of his military education requirements until he completed AWOAC, Class 12-003-RC, on 17 September 2012.  Additionally, he did not meet any of the exception criteria outlined in National Guard Regulation 600-101, chapter 7-9b-e.  

   g.  The AZARNG concurred with the recommendation.

11.  The advisory opinion was provided to the applicant on 2 June 2014 for acknowledgement/rebuttal.  He did not respond.

12.  Army Regulation 600-8-29 (Officer Promotions) prescribes the active duty officer promotion function of the military personnel system.  The regulation states in:

   a.  Paragraph 1-18 - unless an officer declines a promotion in writing under the provisions of chapter 5 he or she is considered to have accepted the promotion on the effective date announced in the promotion order.  A WO who accepts promotion to the grade of CW3 will incur a service obligation.

   b.  Paragraph 5-5 – HRC must receive a declination memorandum signed by the officer before the effective date of promotion.  The name of an officer who declines promotion will be deleted from the promotion list by Headquarters, Department of the Army.  The officer will not be eligible again for promotion as a result of action by the promotion selection board or special selection board that recommended him or her for promotion.  Declination is irrevocable on or after the effective date of the promotion.  Deletion from a promotion list based on declination of promotion will not constitute a non-selection for promotion.

13.  National Guard Regulation 600-101, chapter 7, prescribes the promotion of warrant officers in the ARNG.  The regulation states in:

   a.  Paragraph 7-9b – Active Guard Reserve WOs must complete all professional development courses in residence at an active Army school with the one exception of any WO who completed an Army Correspondence Course Program comparable to the RC configured WOAC applicable in their current duty MOS is considered to have met the military education promotion requirement.
   
   b.  Table 2-1 – completion of the common core prerequisite correspondence studies administered by the Total Army WO Career Center, Fort Rucker, AL, and the duty MOS WOAC or equivalent is required for promotion to CW3.  This is the minimum military education requirements for promotion to CW3 for all MOS specialties. 
14.  Army Regulation 135-155 prescribes policy for promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and U.S. Army Reserve.  The regulation states for selection to CW3, officers who possess a WO MOS other than 001A (unqualified in a WO MOS) will be considered to have completed the minimum education level.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows that while the applicant met the TIG requirement for promotion to CW3, he had not met the education requirement, completion of the AWOAC.  By regulation, as an aviation WO in the ARNG, completion of WOAC was required before he could be promoted to CW3 in the AZARNG.

2.  His contentions and the documentation he submitted were carefully consideration.  However, he must have met the educational requirements IAW National Guard Regulation 600-101 vice Army Regulation 135-155 in order to be promoted in accordance with the 6-year TIG provision of the regulation.  There is no evidence and he did not provide sufficient evidence to show he had done so.  

3.  Without evidence to the contrary, it appears he was promoted to CW3 in the AZARNG as a result of his completion of the required military education.  There is no evidence and he provided none to show he was erroneously or unjustly promoted to CW3 past the 6-year TIG.

4.  He submitted a copy of an ABCMR ROP pertaining to another CW3 whose DOR was adjusted by the Board.  In that case, the individual's active duty promotion was transferred with him.  In the applicant's case, however, in accordance with the governing active duty regulation and as a result of the applicant's declination of promotion his name was properly removed from the promotion list.  Therefore, the active duty promotion to CW3 became void and he did not maintain his promotion standing when he transferred to the RC.  

5.  The ABCMR considers individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  Each case that is brought before the Board may have some similarities; however, each usually has some differences and therefore what was done in one case and the outcomes achieved cannot necessarily be applied to another similar or like case. 




6.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20130020423



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ABCMR Record of Proceedings (cont)                                         AR20130020423



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