IN THE CASE OF:	  

		BOARD DATE:	 18 April 2012 

		DOCKET NUMBER:  AR20110011992 


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 date of rank (DOR) to chief warrant 
officer two (CW2).  

2.  The applicant states he met all requirements for promotion to CW2 prior to 4 November 2010 when his unit's MTOE (modified table of organization and equipment) changed.  He had the applicable time in grade; however, his promotion packet was not boarded until 26 January 2011 due to administrative delays beyond his control.

3.  The applicant provides a memorandum, orders, a certificate, and DA Form 1059 (Service School Academic Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a warrant officer (WO) in the Missouri Army National Guard (MOARNG) and executed an oath of office on 20 September 2008.

2.  He attended and successfully completed the Initial Entry Rotary (IER) Wing Aviator AH-64D course from 3 March to 25 August 2010 and he was awarded specialty 152H (AH-64D Attack Pilot).

3.  On 23 February 2011, a Federal Recognition Board (FRB) was held by the MOARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW2.  The applicant was found to be satisfactory in his physical qualifications, moral character, and general qualifications.

4.  On 24 February 2011, the MOARNG published Orders Number 055-041 promoting him to CW2 with a DOR and effective date of 23 February 2011.  

5.  On 23 June 2011, the MOARNG published Orders Number 174-190 amending Orders Number 055-041 promoting him to CW2 with a DOR and effective date of 26 November 2010.  

6.  On 16 August 2011, NGB (National Guard Bureau) published Special Orders Number 188 AR extending him Federal recognition for promotion to CW2 with a DOR and effective date of 11 August 2011.

7.  On 21 March 2012, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request to adjust his DOR to CW2 from 11 August 2011 to 26 November 2010 and opined that:

	a.  The applicant's FRB was held on 23 February 2011 and his new effective DOR from the MOARNG was 26 November 2010.  According to Title 10, section 14308, a Soldier's DOR cannot be before the date of the FRB.  Therefore, no authority is granted to amend the effective date prior to the date the FRB convened.  

	b.  Furthermore, effective 7 January 2011, the 2011 National Defense Authorization Act (NDAA) mandated that all WO appointments and promotions for CWO grades in the ARNG must be made by the President of the United States.  Requests for appointments will be staffed through the Department of the Army, Assistance Chief of Staff, G-1.  This requirement may add 90 days or more to the process of approval for appointment as a Reserve WO of the Army to be completed.  The applicant's promotion packet was submitted after the effective date of the NDAA guidance.  There is no basis to upon which to change the applicant's DOR.  His DOR should remain as 11 August 2011 in accordance with Federal Recognition Order Number 188 AR.

	c.  The State does not concur with this recommendation.

8.  On 22 March 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

9.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve for service as a member of the ARNG of the United States, his appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  Section 14308 (f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

10.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO's in the ARNG is a function of the State.  As in original appointments, a WO promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Promotions will be based on the Department of the Army proponent duty military occupational specialty certification via satisfactory completion or constructive credit of appropriate level of military education, time in grade, demonstrated technical and tactical competence, and potential for service in the next higher grade as determined by an FRB.

11.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum time in grade for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WO Basic Course, or equivalent certification, within 2 years from date of initial appointment as WO1.

12.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that ARNG WO's are initially appointed and are also promoted by the State or Territory to which the officer is assigned.  The Chief, NGB, reviews and approves those actions.  Title 10, U.S. Code, sections 571b and 12241b, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's and promotion to higher grades by warrant or commission will be issued by the President (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army, Deputy Chief of Staff, G-1.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO in the ARNG on 20 September 2008 and he completed the IER Wing Aviator on 25 August 2010.  He met the minimum time-in-grade and education requirements for promotion to CW2 and he was favorably considered by an FRB on 23 February 2011 that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  

2.  He was issued State orders promoting him to CW2 effective 23 February 2011 which was later amended to 26 November 2010.  NGB issued him Federal recognition orders for promotion to CW2 effective 11 August 2011.

3.  Regulatory guidance allows that Reserve officers that meet minimum time-in-grade and education requirements are eligible for promotion but does not require they be promoted once they meet these requirements.  In addition, the applicable laws directed the effective date of a promotion of a Reserve officer shall be the date on which Federal recognition in that grade is extended.

4.  As a result of the 2011 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense.  This change removed NGB authority to approve and publish WO Federal recognition orders.

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of WO's that was mandated by the 2011 NDAA that WO's be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.  The law took effect on 7 January 2011.  There followed a period of time during which the procedures for processing WO appointment and promotion scrolls were developed and refined.

	b.  Although this process was modeled on the existing process of scrolling commissioned officer appointments and promotions, there was still a period during which the WO scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG WO's, and probably WO's from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.

	c.  The delay in question was not the result of an error or an injustice as much as it was the inherent consequence of elevating the appointment and promotion authority for WO's to such a high level.  While it is true the processing time has been materially reduced as the service learned how to streamline the new process, the fact remains that the delay is an organic feature of the new scheme mandated by Congress and not an error or an injustice specific to the applicant.

5.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion of 11 August 2011 seems appropriate and reasonable and should not be changed.

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)                                         AR20110011992





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ABCMR Record of Proceedings (cont)                                         AR20110011992



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