IN THE CASE OF:	  

		BOARD DATE:  3 May 2012

		DOCKET NUMBER:  AR20110019879 


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 permanent Federal recognition date for promotion to the rank of chief warrant officer four (CW4) to 27 February 2011 and back pay from that date.

2.  The applicant states:

	a.  With the signing of the National Defense Authorization Act (NDAA) 2011 into law, all Army National Guard (ARNG) warrant officer promotions were elevated from the Secretary of the Service level to the President of the United States level.  At that time, no procedures had been established to staff ARNG warrant officer actions above the National Guard Bureau (NGB) level.  The lack of preparation and staffing resulted in no ARNG warrant officer promotions during the period February 2011 through July 2011.  This delay resulted in a loss financially as well as a delayed date of rank (DOR) in the higher grade, which will further delay future promotions due to the minimum time in grade required to meet promotion eligibility.

	b.  He has reason to believe his promotion was either lost or just abnormally delayed without any justification or explanation.  He was boarded by a Federal recognition board (FRB) held in Maine on 18 February 2011 and promoted by State promotion orders on 18 February 2011 with a DOR of 23 February 2011 and further amended to 27 February 2011.  Upon completion of this action, his State Officer Personnel Manager forwarded the appropriate documents to NGB on 2 March 2011 for issuance of Federal recognition orders, finalizing his promotion action with a DOR to be approved by the FRB.

	c.  After several months and many inquires, no one could tell him the status of his promotion or even how far along it was in the approval process.  Eventually on 17 August 2011, he received an email from his State Chief Warrant Officer that contradicted itself and placed his scroll at two different places at the same time.  The email said he was on scroll 04-11 but stated the scroll was approved and signed by the Secretary of Defense (SECDEF) on 21 July 2011.  The status of all the scrolls was added as an attachment to the email.  The email referenced his scroll number as 04-11 but stated the scroll was at the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, a step somewhere in the approval process before being at the SECDEF level.

	d.  he asked for clarification and was told his scroll was at the Office of the Under Secretary for Personnel and Readiness even though the current scroll status data still showed it already signed by the SECDEF.  No one was able to give him any specifics regarding where his promotion was or explain the contradiction in information.  This is why he feels it was lost somewhere in the system which caused undue delay.

	e.  On 2 September 2011, he filed a Congressional Inquiry to try to get some answers.  Either as a direct result of the Congressional inquiry or just sheer coincidence, his paperwork was finally processed with a promotion date of 6 September 2011 as compared to the amended date on his State promotion orders.

	f.  The guidance from NGB states that under the new promotion process the timeline from State to SECDEF is typically 90-120 days, thus allowing the State to submit the paperwork 90 days prior to the Soldier's promotion date.  His promotion was started under the old process which only allowed the State to submit paperwork 30 days prior to promotion, and then went through the transition to the new process, which is where he believes it was lost.

	g.  His promotion date was 191 days late, not including the 30 days prior to his promotion date that he was allowed to submit his paperwork to the State.  He knows of one specific instance where another chief warrant officer three (CW3) in his State submitted his paperwork under the new system 70 days prior to his promotion date.  This was approximately 2 months after the applicant submitted his paperwork.  The other CW3's date of promotion to CW4 is 15 August 2011, 23 days prior to his (the applicant's) date of promotion of 6 September 2011.  The other CW3 was on scroll 07-11 that was signed by the SECDEF on 22 July 2011, 1 day after the applicant's scroll was signed.

	h.  Because of the extended administrative delay in developing the process and the subsequent staffing of his promotion action, the other CW3 now has an earlier DOR by 23 days even though he (the applicant) had an earlier DOR as a CW3 by 5 months.  This loss of time in grade will adversely affect his ability to get promoted to chief warrant officer five in the Maine Army National Guard (MEARNG).  Due to all of these factors, which were all beyond his control, he requests adjustment of his effective date of promotion and DOR to 27 February 2011, the amended date the MEARNG approved his promotion effective date.

3.  The applicant provides:

* email from the MEARNG Command Chief Warrant Officer
* NGB promotion orders
* MEARNG promotion orders
* amended promotion orders
* NGB Special Orders Number 212 AR, dated 7 September 2011
* FRB proceedings
* scroll numbers and approval dates

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the MEARNG, the applicant was appointed as a warrant officer one in the MEARNG on 27 November 1996.  He was promoted to CW2 effective 23 February 1999 and he was promoted to CW3 effective 27 February 2006.

2.  On 18 February 2011, an FRB determined the applicant was qualified for Federal recognition in the rank of CW4.

3.  MEARNG Orders 049-104, dated 18 February 2011, show he was promoted to CW4 effective 23 February 2011.  These orders were amended on 26 April 2011 to show his promotion was effective 27 February 2011.

4.  NGB Special Orders Number 212 AR, dated 7 September 2011, awarded the applicant permanent Federal recognition for promotion to the grade of CW4 effective 6 September 2011.

5.  ARNG Policy Memorandum Number 11-105, dated 14 June 2011, pertains to Federal recognition of warrant officer appointments in the ARNG.  This memorandum states all initial appointments of warrant officers and appointments in a higher grade (promotion) by warrant or commission will be issued by the President of the United States effective 7 January 2011.

6.  An ARNG information paper, dated 22 July 2011, subject:  NDAA 2011 Changes to Warrant Officer Federal Recognition Process, states:

	a.  Prior to 7 January 2011, all warrant officer Federal recognition appointments and promotions were approved by the Secretary of the Army.  The Secretary of the Army delegated this authority to the Director, NGB, and NGB published all Federal recognition orders for warrant officers.

	b.  On 7 January 2011, NDAA 2011 was signed and a new requirement was created that all warrant officer appointments and promotions would have to be signed by the President of the United States.  This new requirement removed NGB authority to approve and publish all warrant officer Federal recognition orders.  All warrant officer appointments and promotions are now required to be placed on a scroll and processed through various channels from the Department of the Army G-1 up to the SECDEF.

	c.  Before NDAA 2011, all National Guard warrant officer promotions effective DOR was the date of the State promotion orders as stated by the FRB recommendations.  NDAA 2011 did not stipulate what the effective DOR of promotions would or would not be.  Currently, the assumption is that all warrant officer Federal recognition promotions will be the date the SECDEF signs the scroll.

7.  An ARNG information paper, dated 9 August 2011, subject:  Warrant Officer Federal Recognition Scroll 01-11 Status and Update for Scrolls 02-11 through 10-11, states the DOR will not be retroactive to the DOR on the State promotion orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and his supporting evidence have been carefully considered.

2.  By law, effective 7 January 2011, all warrant officer promotions are required to be placed on a scroll and be processed through various channels up to the SECDEF.

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of warrant officers that was mandated by NDAA 2011 that warrant officers be placed on a scroll and staffed to the President (delegated to the SECDEF) for approval.  The law took effect on 7 January 2011.  There followed a period of time during which the procedures for processing warrant officer 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 warrant officer scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG warrant officers, and probably warrant officers 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 warrant officers 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.

3.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion seems appropriate and reasonable and should not be adjusted.

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)                                         AR20110019879



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ABCMR Record of Proceedings (cont)                                         AR20110019879



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