IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110020445 


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) and effective date to chief warrant officer four (CW4) from 11 August to 9 February 2011 as indicated on his Federal recognition orders. 

2.  The applicant states:

* Prior to the 2011 National Defense Authorization Act (NDAA), Army National Guard (ARNG) officers were promoted by the Chief, National Guard Bureau (NGB)
* After the 2011 NDAA, the authority was elevated from the Secretary of the service to the President of the United States
* When the new policy was signed into law, many officials were unaware of the significant changes it entailed
* The change led to a delay by the NGB in processing promotion actions
* In his case, a Federal Recognition Board (FRB) held by the Arizona ARNG (AZARNG) on 8 February 2011 recommended his promotion to CW3 on 9 February 2011
* His State forwarded the appropriate documents to the NGB on 9 February 2011
* The NGB published the Federal recognition order with an effective date of 11 August 2011 as compared to the DOR of 9 February 2011 shown on his State orders 



3.  The applicant provides:

* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* Orders 040-629 issued by the AZARNG on 9 February 2011
* NGB Special Orders Number 188 AR, dated 16 August 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve warrant officer (WO) in the Oregon ARNG on 5 February 1999.  He attended and successfully completed the Property Accounting Technician WO Basic Officer Course and he was awarded specialty 920A (Property Book Officer).

2.  He transferred to the AZARNG on 1 June 2003.  He subsequently served in a variety of stateside or overseas assignments and he completed the WO Property Accounting Technician Advance Course from 25 July to 5 August 2005.

3.  He was promoted to chief warrant officer three (CW3) and extended Federal recognition with a DOR and effective date of 21 March 2006.

4.  He successfully attended and completed the WO Staff Course from 12 April to 7 May 2010 at Fort Rucker, AL.

5.  On 8 February 2011, an FRB was held by the AZARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW4.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

6.  On 9 February 2011, the AZARNG published Orders 040-629 promoting the applicant to CW4 with a DOR and effective date of 21 March 2011. 

7.  On 16 August 2011, the NGB published Special Orders Number 188 AR extending him Federal recognition for promotion to CW4 with a DOR and effective date of 11 August 2011.

8.  Title 10, U.S. Code, section 1211 (Officers: ARNG of the U.S.) 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.


9.  National Guard Regulation (NGR) 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 MOS 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.

10.  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.  Table 7-1 states, in pertinent part, that the minimum time in grade for promotion to CW3 is 5 years in the lower grade.  Table 7-2 states, in pertinent part, that the minimum military education requirement for promotion to CW4 is completion of the WO Staff Course. 

11.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's in the ARNG, dated 14 June 2011 states that ARNG WOs 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 introduce a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States.  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.  Requests for appointment will be staffed through the Department of the Army (delegated to the Secretary of Defense), 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's DOR as a CW2 was 21 March 2006 and he completed the WO Staff Course in May 2010.  He met the minimum time-in-grade requirements for promotion to CW4 on 21 March 2011 and he was favorably considered by an FRB that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  He was also issued a State order promoting him to CW4 effective 21 March 2011.  The NGB issued him Federal recognition orders for promotion to CW4 effective 11 August 2011.
2.  However, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a CW3 to CW4 is now issued by the President of the United States and is delegated to the Secretary of Defense.  

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of WOs that was mandated by the 2011 NDAA that WOs 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 WOs, and probably WOs 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 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.

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 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)                                         AR20110020445



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ABCMR Record of Proceedings (cont)                                         AR20110020445



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