IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110020272 


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) for chief warrant officer four (CW4) from 6 September 2011 to 31 March 2011.

2.  The applicant states:

   a.  The new warrant officer (WO) promotion system (January 2011) was not correctly in place to promote WOs in a timely manner.  When the new system was required to be in place no one at the National Guard Bureau (NGB) or the Department of the Army (DA) had a plan to implement it.
   
   b.  It took several months for any promotion to be conducted.  This was through no fault of the Soldiers who should have been promoted on the same time-line as past and future peers.
   
   c.  This was not only a financial loss, but all time lost for future promotions (time in grade).  Through no fault of his own, his promotion was delayed by 5 months and 7 days due to the new requirements that were not implemented correctly or in a timely manner.
   
   d.  He was boarded by a Federal Recognition Board (FRB) on 10 February 2011 and promoted on State orders on 10 February 2011, with a DOR of 31 March 2011.
   
   e.  The State officer personnel manager forwarded the appropriate documents to the NGB on 14 February 2011 for issuance of Federal Recognition orders for finalizing his promotion as approved by the FRB
   
   f.  This delay pending development of staffing procedures resulted in his DOR being 6 September 2011, as compared to the date on his State promotion orders of 31 March 2011.

3.  He provides:

* CW4 state promotion orders
* Federal Recognition orders
* NGB Promotion Memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the Washington Army National Guard (WAARNG), as a WO1, on 14 February 1997.  He was promoted to CW3 on 31 March 2005.  On 10 February 2011, an FRB found him qualified for Federal Recognition as a CW4 in the WAARNG.

2.  Orders 041-926, Headquarters Military Department, WAARNG, dated 10 February 2011, promoted him to CW4 with an effective date and DOR of 31 March 2011.  The orders stated that he would not be paid as a CW4 or authorized wear of the insignia until Federal Recognition was confirmed.  

3.  Special Orders Number 212 AR, NGB, dated 7 September 2011, extended him Federal Recognition and promotion to CW4 effective 6 September 2011.

4.  On 7 September 2011, the NGB issued a memorandum through the State announcing his promotion to CW4 with an effective date and DOR of 6 September 2011.

5.  In the processing of this case, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB, on 31 January 2012.  The advisory official reiterated the applicant's request.  The official stated:

   a.  Effective 7 January 2011, the National Defense Authorization Act (NDAA) mandated all promotion for WOs, regardless of component and appointments, be signed by the President of the United States (POTUS).  This change removed the NGB authority to approve and publish all WOs Federal Recognition orders.

   b.  After the change in public law, the NGB published WO promotion guidance on 14 June 2011.  State promotion orders for the applicant were published on 10 February 2011 with an effective DOR of 31 March 2011.
   
   c.  NGB memorandum, dated 14 June 2011, paragraph 2(b), states in part, "…introduce a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the POTUS.  Paragraph 5(a) states in part, "…effective 7 January 2011, all initial appointments of WOs and appointments in a higher grade (promotion), by warrant or commission, will be issued by the POTUS.  Request for appointments will be staffed by the DA, Assistant 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."
   
   d.  The applicant's promotion packet was submitted after the effective date of the referenced guidance.  As addressed in the memorandum, the delay in processing the applicant's packet was due to the implementation of the new guidance.  Though this procedural delay was no fault of the applicant, the change in public law was effective before his promotion packet was submitted.
   
   e.  The official recommended the applicant's DOR remain in accordance with Federal Recognition Special Orders Number 212 AR, effective 6 September 2011.  It was noted that the State did not concur with the recommendation.

6.  On 1 February 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.

7.  National Guard Regulation (NGR) 600-101 (WOs - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of WOs in the ARNG is a function of the State.  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 NGR 600-101 to attain eligibility for promotion and receive Federal Recognition in the higher grade.  

8.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WOs in the ARNG, dated 14 June 2011, states that ARNG WOs 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 CWOs grades in the ARNG, be made by the POTUS.  As a result, effective 7 January 2011, all initial appointments of WOs 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 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 evidence of record shows the applicant was favorably considered by an FRB on 10 February 2011, after the effective date of change in public law stipulated in NDAA 2011.  His State promotion orders were published on the same date for promotion to CW4 with a DOR of 31 March 2011.  

2.  His contentions have been noted; however, the change in the public law was effective prior to his promotion packet being submitted.  The NGB memorandum, dated 14 June 2011, stated, in effect, the requirement for all WO promotions to be made by the POTUS could add 90 days or more to the process of approval.

3.  The delay in his promotion resulted from a statutory change in the procedures for the promotion of WOs mandated by NDAA 2011.  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 WOs 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.

4.  In view of the foregoing evidence and the change in law, his effective date of promotion and DOR seem appropriate and reasonable and should not change.

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)                                         AR20110020272



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ABCMR Record of Proceedings (cont)                                         AR20110020272

   
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