IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160004431 BOARD VOTE: ____X_____ __X_____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160004431 BOARD DETERMINATION/RECOMMENDATION: 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 Army National Guard records of the individual concerned be corrected by showing he was promoted to the rank/grade of chief warrant officer four (CW4)/pay grade W-4 with a date of rank of 7 July 2015. ______________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. IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160004431 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 the date of rank (DOR) announced for Federal Recognition (FEDREC) of his promotion to chief warrant officer four (CW4) from 23 December 2015 to 7 July 2015. 2. The applicant states FEDREC of his promotion to CW4 was unjustly delayed as a result of two unusual administrative actions beyond his control. a. The applicant refers to National Guard Regulation (NGR) 600-101 (Warrant Officers FEDREC and Related Personnel Actions), dated 1 October 1996, to illustrate the injustice. He notes, at that time, a change to Warrant Officer (WO) education requirements provided a built-in exception to policy (ETP) for those (then) serving in the rank of chief warrant officer three (CW3) with 3 years' time in grade (TIG). He also notes that the National Guard (NG) mandatory service obligation (MSO) for WO promotions was one month. b. He states that NGR 600-101 was updated on 3 September 2014 and he met every promotion requirement detailed in the newly published regulation. However, paragraph 1-9c changed the NG MSO for promotions from one month to two years in order to align it with the active duty MSO. The updated regulation was problematic in that he turned age 58 in September 2014 and his age precluded him from fulfilling the new 2-year MSO without obtaining an ETP. c. On 7 November 2014, the Commander, Camp Ravenna Joint Military Training Command (CRJMTC), approved his request for age waiver to serve beyond age 60, as an ETP. On 7 December 2014, a revised ETP (for waiver of the MSO) was submitted based on the direction of the State of Ohio NG. Then, based on direction of the National Guard Bureau (NGB), a final version of the request was submitted on 7 January 2015. This version actually reverted to the initial format the applicant prepared in November 2014. However, the Mandatory Removal Date (MRD) extension to age 62 (plus 2 months) was not approved by the NGB until 28 February 2015. d. He states the new revision directs that an ETP for MSO be pursued on a case-by-case basis for WOs who cannot comply.  The earlier precedent of a "grandfathered" ETP, an exemption, or a suspense date was not specified in the new version and affected officers were left to sort out the ambiguity. An unintended consequence of this was confusion between the State of Ohio NG and NGB regarding the ETP format. This oversight or lack of clarity in the promotion process unjustly held up his promotion for at least two months. e. On 8 January 2015, he was involuntarily cross-leveled into a chief warrant officer two (CW2) position to support the 1194th Engineer Company mobilization/deployment and begin pre-deployment unit training.  An email response to his concern about a lower position jeopardizing his promotion was allayed by the State Command Chief Warrant Officer (SCCWO).  In spite of the SCCWO's correct interpretation, the concern was prescient because paperwork made it appear as though he no longer met TIG for promotion to CW4. The reality is that, although he was cross-leveled, his previous CW4 position was being held vacant for him throughout his deployment. f. He was reassigned to CRJMTC upon being released from active duty (REFRAD) plus a 90-day reintegration drill.  The NGB Human Resource Promotion (HRP) e-Tracker case history he provides indicates that the position-status administrative corrective action(s) are dated from late March 2015 until he was finally added to the federal scroll on 5 June 2015.  He adds that the injustice of a promotion delay created by an involuntary cross-leveling action to meet a military deployment need speaks for itself. g. He states that he has calculated his DOR correction date as 7 July 2015 by analyzing the published FEDREC data of four fellow Ohio ARNG (OHARNG) WOs originally selected by the (same) Warrant Officer Selection Group (WOSG), Fiscal Year 2015, 1st Quarter, on 10 December 2014. Three of his "promotion peers" received a DOR of 7 July 2015; the other one received a DOR of 24 November 2015. h. He states that using either a median statistical approach or a standard deviation method eliminates the outlier date and targets 7 July 2015 as the fairest and most equitable wait-time for comparable FEDREC packets awaiting promotion. Unusual administrative actions delayed his promotion and benefits nearly six months before he could begin the new 24-month MSO. He concludes that a FEDREC date of 23 December 2015 for promotion, pay, and allowances is unjust due to both age and deployment-related discrimination. He requests that the Board correct the injustice by awarding a corrected DOR of 7 July 2015. 3. The applicant provides copies of the following documents – * extracts of NGR 600-101 * NGB SO Number 1 AR * Request for ETP – Retention Beyond Age 60 * Officer Record Brief * Request for ETP – 2-Year Service Obligation for Promotion to CW4 * MRD Extension – Age Waiver * Cross-Leveling orders and correspondence * Promotion Packet – Tracker Case Actions History * WOSG Promotion Announcement * NGB promotion orders pertaining to contemporaries CONSIDERATION OF EVIDENCE: 1. The applicant was born in September 1956. He had prior honorable enlisted service in the U.S. Navy and in the ARNGUS. 2. He was appointed as a Reserve WO in the rank of warrant officer one on 14 November 2003. 3. He was awarded military specialty 210A (Utility Operations Maintenance Technician). * He was promoted to: * CW2 on 10 March 2006 * CW3 on 12 March 2010 * He completed the WO Staff Course (WOSC) in 2014 4. State of Ohio, Adjutant General's (AG's) Department, Columbus, OH, memorandum, dated 20 January 2015, subject: Notification of Promotion Status, shows the applicant was notified that the OHARNG WOSG convened on 10 December 2014 and selected him for promotion to CW4 (W-4). He was also advised that he must be fully qualified for promotion in accordance with NGR 600-101, chapter 7 (Promotions), otherwise his promotion could be delayed if he did not meet all criteria at the time of selection for promotion. 5. NGB, Arlington, VA, memorandum, dated 28 February 2015, subject: MRD Extension, shows the Chief, Personnel Policy Division, granted the applicant's request for MRD extension beyond age 60. The applicant was authorized to be retained in an active status in the OHARNG until 18 November 2018, provided he remained otherwise qualified or if not sooner terminated for cause. 6. State of Ohio, AG's Department, Columbus, OH, Orders 078-947, dated 19 March 2015, promoted the applicant to CW4 (W-4) effective and with a DOR of 17 March 2015. The additional instructions show: * The effective date of promotion in the Reserve of the Army and corresponding DOR will be the date the Chief, NGB, extends FEDREC of the State promotion. * Current Duty Position: 120A0 Construction Engineer Technician, Paragraph/Line: 102/02, Qualified; Excess: 999K * Mobilized Soldier being promoted into OHARNG Training Center Camp Ravenna (92FAA), Construction Engineer Technician, Paragraph/Line: 060B/02 7. NGB, Washington, DC, SO Number 100, dated 18 May 2015, shows the applicant, a member of the OHARNG and with his consent, was retained in an active status until 17 November 2018, unless sooner transferred to the Retired Reserve or discharged. 8. NGB, Washington, Arlington, VA, memorandum, dated 5 January 2016, promoted the applicant to CW4 effective 23 December 2015. It shows the promotion and authorization for pay and allowances in the higher grade are effective 23 December 2015. 9. NGB, Washington, DC, SO Number 2 AR, dated 5 January 2016, announced the extension of FEDREC of the applicant's promotion to CW4 effective and with a DOR of 23 December 2015. 10. In support of the application the applicant provides the following additional documents. a. Two OHARNG, CRJMTC, Newton Falls, OH, memoranda, dated 7 November 2014, with supporting documents (i.e., medical, physical, and service qualifications, and Officer Record Brief) pertaining to the applicant. (1) The applicant requested ETP for retention beyond age 60 to allow him to fulfil the new 2-year MSO upon promotion to CW4. He also provided specific information pertaining to his qualifications for promotion. (2) The commander recommended approval of the applicant's request for ETP for retention beyond age 60. b. OHARNG, CRJMTC, Newton Falls, OH, memorandum, dated 3 December 2014, that shows the applicant requested an ETP for waiving the 2-year MSO for promotion to CW4. c. State of Ohio, AG's Department, Columbus, OH, memorandum, dated 7 January 2015, that shows the Deputy Chief of Staff for Personnel recommended approval of the applicant's request for ETP for the 2-Year MSO for promotion to CW4. d. NGB, Washington, Arlington, VA, memorandum, dated 28 February 2015, that shows the applicant's request for MRD extension beyond age 60 was approved with an MRD of 18 November 2018. e. State of Ohio, AG's Department, Columbus, OH, Orders 008-908, dated 8 January 2015, transferred the applicant, effective 8 January 2015, as follows: * Released from: Construction Engineer Technician, OHARNG CRJTC, Newton Falls, OH * Transferred to: Construction Engineer Technician, 1194th Engineer Company (Vertical), Chillicothe, OH * Additional Instructions, "command directed cross level transfer" * For Army Use – * Assign/loss reason: mobilization of individual * Position Number Excess Code: Soldier mobilized as cross level fill and will be moved back to parent unit on release from active duty for training * Duty positon qualification: Qualified f. Email messages that show: * on 5 October 2014, the SCCWO informed the applicant (regarding promotion eligibility) his unit would have to submit a request for extension beyond age 60 to NGB ARNG WO Policy Branch * on 12 January 2015, the applicant advised that he submitted an age extension request on 26 October 2014 through his unit – * in December 2014, the State Human Resource Office directed him to submit an ETP for MSO in lieu of an age wavier * he complied with the new guidance and submitted a second request for ETP, but an age wavier was not included (as NGB originally desired) * he acknowledged (in retrospect) he should have verified the change with NGB * on 12 January 2015, the SCCWO informed the applicant – * an endorsement for the ETP was submitted to the G1 ( the week prior) * the SCCWO was awaiting a response from ARNG WO Policy Branch * upon receipt of approval, the promotion packet would be submitted * the cross-level/transfer would not hold up his promotion, if the ETP was approved g. NGB HRP E-Tracker Case Actions History pertaining to the applicant, as of 22 January 2016, that shows the processing timeline of the applicant's personnel actions during the period 30 March 2015 to 5 January 2016. It shows, in pertinent part, the applicant's promotion packet was assigned to Scroll on 5 June 2015 and the Scroll was approved on 5 January 2016. h. State of Ohio, AG's Department, Columbus, OH, memorandum, dated 5 January 2015, subject: WOSG Results, Fiscal Year 2015 – 1st Quarter, with two enclosures that show the applicant was recommended for promotion, administrative processing would be accomplished by the major subordinate command, and the effective date(s) for transfer and/or promotion would be coordinated with the gaining and losing commands. (1) Enclosure 2 lists five WOs recommended for promotion (i.e., three for promotion to CW3 and two for promotion to CW4, including the applicant). (2) Four NGB SOs pertaining to the (other) WOs listed on Enclosure 2 (above) that show – * two of the WOs were promoted to CW3 on 7 July 2015 * one WO was promoted to CW3 on 24 November 2015 * one WO was promoted to CW4 on 7 July 2015 * the applicant was promoted to CW4 on 23 December 2015 11. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, Arlington, VA. a. The advisory official recommends full administrative relief. Specifically, adjustment of the applicant's promotion date to 7 July 2015; the same date his peers were promoted who submitted promotion packets at the same time. b. The NGB advisory official confirmed the applicant was age-limited from fulfilling the new 2-year MSO without obtaining an ETP. Based on an email from the OHARNG, dated 7 July 2016, the NGB determined the applicant's promotion was delayed due to mishandling at the state level and due to no fault of the applicant. c. The revised NGR 600-101, dated 3 September 2014, required WOs accepting promotion to incur a 2-year service obligation. If the WO's MRD did not allow for completion of the service obligation, an ETP was required with the promotion packet request. On 28 February 2015, the NGB approved the extension of the applicant's MRD. d. The OHARNG acknowledged that it failed to include the ETP with the promotion packet, delaying the applicant's promotion. The advisory official added that it appears there was some confusion when the applicant was cross-leveled to a mobilizing unit. He noted that when a service member is cross-leveled, they still maintain a position at their home unit, which may have also played a part in the delay of the applicant's promotion. e. The advisory opinion was coordinated with the ARNG WO Policy Division. In addition, the OHARNG concurs with the recommendation. 12. On 20 July 2016, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. On 4 August 2016, the applicant provided his concurrence with the revised DOR offered in the advisory opinion. REFERENCES: NGR 600-101, effective 3 September 2014, provides procedures for processing warrant officer applications for FEDREC and announces policy dealing with civilian and military education requirements for promotion. a. Chapter 1, paragraph 1-9 (Service Obligations), shows a WO who accepts a promotion to the rank of CW3, CW4, or CW5, incurs a 2-year additional service obligation. This service obligation begins on the date that FEDREC is granted. Applications for FEDREC for WOs promoted to a higher grade, who cannot complete the 2-year additional service obligation, will be processed by an ETP on a case-by-case basis. b. Chapter 7 shows the promotion of WOs in the ARNG is a function of the State. However, to be extended FEDREC in the higher grade the officer must satisfy the prescribed requirements. (1) Table 7-1 (Minimum/Maximum TIG for Promotion) shows for promotion from CW3 to CW4 the minimum years in lower grade is 5 years and the maximum years in lower grade is 6 years. It also shows WOs in grade positons coded higher than their current grade may be considered for promotion one (1) year earlier than the maximum prescribed. (2) Table 7-2 (Minimum/Maximum WO Education System Requirements for Promotion, Time in Current Grade, and Course Entitlements) shows for promotion to CW4 completion of the WOSC and 3-years minimum/6-years maximum TIG as CW3. DISCUSSION: 1. The applicant contends that his DOR for promotion to CW4 (W-4) should be corrected to 7 July 2015 because his promotion was administratively delayed. 2. On 10 December 2014, the OHARNG WOSG selected the applicant for promotion to CW4 subject to being fully qualified for promotion in accordance with NGR 600-101, chapter 7. At the time, he was 58 years of age, serving in the rank of CW3 (with a DOR of 12 March 2010) in a CW4 position, and he had completed the WOSC 3. NGR 600-101, effective 3 September 2014, established the 2-year MSO for NG WO promotions. This required the applicant to obtain an ETP for both his age and the MSO in order to be promoted to CW4. 4. The evidence of record shows, on 7 November 2014, the applicant submitted a request for ETP for retention beyond age 60 to allow him to fulfil the new 2-year MSO upon promotion to CW4. However, it appears the procedures for obtaining the ETPs were not clear to ARNG officials because the applicant was given instructions to submit another ETP for MSO in lieu of an ETP for retention beyond age 60. 5. On 28 February 2015, the NGB approved the applicant's request for MRD extension beyond age 60 with an MRD of 18 November 2018. 6. The OHARNG promoted the applicant to CW4 effective and with a DOR of 17 March 2015. 7. On 18 May 2015, the NGB approved the applicant's retention in an active status until 17 November 2018. 8. The NGB announced the extension of FEDREC of the applicant's promotion to CW4 effective and with a DOR of 23 December 2015. 9. On 18 July 2016, the NGB determined the applicant's promotion was delayed due to mishandling at the state level and due to no fault of the applicant. Additionally, the NGB advisory official confirmed the applicant remained eligible for promotion during the period of service under review. Accordingly, the NGB recommends his DOR for promotion to CW4 be adjusted to 7 July 2015. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004431 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004431 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2