IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110018778


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 Federal recognition orders to show his date of rank (DOR) and effective date of promotion to chief warrant officer five (CW5) as 7 January 2011 instead of 11 August 2011.

2.  The applicant states:

* nationally within the Army National Guard (ARNG), warrant officer (WO) promotions and appointments were held up due to a change outlined in the National Defense Authorization Act (NDAA) of 2011
* the NDAA procedurally changed the way WO's are promoted or appointed insofar as all WO promotions and appointments are now signed by the President of the United States or his designated representative
* the National Guard Bureau (NGB) stopped all WO promotions and appointments until a process could be created and implemented to address this new requirement
* NGB and the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, promulgated policy which stated that WO DOR's would coincide with the date the Secretary of Defense (SECDEF) signed each scroll (roster of WO awaiting promotion or appointment)
* the process was further delayed because Army G-1 sought a legal opinion from the Headquarters, Department of the Army, Office of the Judge Advocate General (OTJAG)
* many WO's were impacted by this procedural change, because prior to the implementation of NDAA 2011, a WO's effective date and DOR coincided with the dates from their respective State's promotion orders
* NDAA 2011 did not stipulate what a WO's effective date and DOR would be
* OTJAG is reviewing this issue and Army G-1 and NGB are awaiting the outcome of this review to determine if the effective dates and DOR's can revert to the dates on the State's promotion orders
* before the implementation of NDAA 2011, he would have been promoted to CW5 effective 7 January 2011 – instead, he was promoted effective 11 August 2011, over 8 months later
* there appears to be 8 months of unjust treatment regarding his promotion effective date
* WO's should not be harmed for changes in administrative and personnel policies and procedures

3.  The applicant provides:

* Oregon ARNG Orders 013-015, dated 13 January 2011
* NGB Special Orders Number 188 AR, dated 16 August 2011
* several pages of e-mail
* a 10-page PowerPoint presentation
* two information papers
* two NGB policy memoranda
* an extract of National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Reserve warrant officer in the Oregon ARNG (ORARNG) and executed an oath of office on 30 August 1991.  He successfully completed the Unit Maintenance Technician (Light) WO Technical Certification Course and was awarded specialty 915A (Unit Maintenance Technician).

2.  He served in a variety of assignments within the ORARNG, attended requisite professional development courses, and was promoted as follows:

* on 13 October 1993, he was promoted to chief warrant officer two (CW2)
* on 20 October 1999, he was promoted to chief warrant officer three (CW3)
* on 20 October 2005, he was promoted to chief warrant officer four (CW4)

3.  On 1 October 2010, he successfully completed the WO Senior Staff Course (WOSSC).

4.  Oregon ARNG Orders 013-015, dated 13 January 2011, promoted him to CW5 with an effective date and DOR of 7 January 2011.

5.  NGB Special Orders Number 188 AR, dated 16 August 2011, extended him Federal recognition for his promotion to CW5 effective 11 August 2011.

6.  He provides several e-mail messages, information papers, policy memoranda, and a PowerPoint presentation, which outline NGB efforts to address WO promotions during the period of transition caused by the implementation of NDAA 2011.

7.  Title 10, U.S. Code, section 12211 (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.

8.  National Guard Regulation 600-101 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 the 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 Federal recognition board (FRB).

9.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the educational 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 from CW4 to CW5 is 5 years in the lower grade.  Table 7-2 states the minimum military educational requirement for promotion to CW5 is completion of the WOSSC.

10.  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 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, introduced a requirement that all WO appointments and promotions to chief WO grades in the ARNG will 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 SECDEF).  Requests for appointment will be staffed through the Army G-1.  This requirement may add 90 days or more to the process completion time for approval of appointments and promotions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Federal recognition orders for his promotion to CW5 should be adjusted to show his DOR and effective date of promotion as 7 January 2011 instead of 11 August 2011.

2.  The evidence of record shows the applicant's date of rank for CW4 was 20 October 2005 and he completed WOSSC on 1 October 2010.  He met the minimum time-in-grade requirements for promotion to CW5 on 20 October 2010.

3.  On 7 January 2011, he was favorably considered by an FRB that found him physically, morally, generally, and professionally qualified for Federal recognition to CW5.  NGB issued him Federal recognition orders for promotion to CW5 effective 11 August 2011.

4.  As a result of the NDAA 2011, promotions from CW4 to CW5 are now issued by the President of the United States (delegated to the SECDEF).

	a.  NDAA 2011 took effect on 7 January 2011.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of WO's mandated by NDAA 2011, that WO's be placed on a scroll and staffed to the President (delegated to the SECDEF) for approval.  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 promotions for 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 that 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 and DOR seem 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 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)                                         AR20110020111



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018778



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1