IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110020954 


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 two (CW2) from 11 August to 25 February 2011.

2.  The applicant states:

* Changes in the Federal Recognition process led to a delay in his promotion
* 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 Washington ARNG (WAARNG) on 1 February 2011 recommended his promotion to CW2 on 10 February 2011, with a DOR of 25 February 2011
* His State forwarded the appropriate documents to the NGB on 1 March 2011
* The NGB published the Federal recognition order with an effective date of 11 August 2011 in lieu of the 25 February 2011 DOR that’s shown on his State orders 


3.  The applicant provides:

* A self-authored statement
* Orders 041-925 issued by the WAARNG, dated 10 February 2011
* NGB Memorandum, dated 16 August 2011
* NGB Special Orders Number 188 AR, dated 16 August 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows, after having prior military service in the U.S. Marine Corps, he enlisted in the WAARNG and continued to serve until he was discharged on 30 April 2007, to accept an appointment as a warrant officer on 24 February 2009.  His NGB Form 22 (NGB Report of Separation and Record of Service) shows he completed 1 year, 9 months, and 25 days of creditable service for the period it covered.

2.  On 25 February 2009, he was appointed as a Reserve warrant officer (WO1) in the WAARNG and ordered to active duty training (ADT).  He successfully completed the Initial Entry Rotary Wing (UH-60) Warrant Officer Basic Course and he was awarded specialty 153D (UH-60 Pilot).

3.  On 2 September 2010, he was released from ADT and transferred to the WAARNG.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time shows he completed 1 year, 6 months, and
8 days of creditable active duty service.

4.  On 10 February 2011, the WAARNG published Orders 041-925 promoting the applicant to CW2 with a DOR and effective date of 25 February 2011. 

5.  On 16 August 2011, the NGB published Special Orders Number 188 AR extending him Federal recognition for promotion to CW2 with a DOR and effective date of 11 August 2011.

6.  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.


7.  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.

8.  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 CW2 is 2 years in the lower grade.  Table 7-2 states, in pertinent part, that 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.

9.  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.

10.  Section 502, Fiscal Year 2011 NDAA, authority for appointment of warrant officers in the grade of W-1 by commission and standardization of warrant officer appointment authority, mandates that all warrant officer appointments and promotions to chief warrant officer grades in the ARNG be made by the President of the United States.  This authority may be delegated to the Secretary of Defense.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's DOR as a WO1 was 25 February 2009 and he completed the WO Basic Course in September 2010.  He met the minimum time-in-grade requirements for promotion to CW2 on 24 February 2011 and he was favorably considered by an FRB that found him fully satisfactory in his physical qualifications, moral character, and general qualifications as evidenced by the State order announcing his promotion to CW2 effective 25 February 2011.  The NGB issued him Federal recognition orders for promotion to CW2 effective 11 August 2011.

2.  However, 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 for approval.  

	a.  The delay in the applicant's promotion resulted from the above statutory change in the procedures for the promotion of WOs.  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)                                         AR20110020954



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ABCMR Record of Proceedings (cont)                                         AR20110020954



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