IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20110021250 


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 order for promotion to chief warrant officer two (CW2) in the Florida Army National Guard (FLARNG) from 15 February 2012 to an earlier date. 

2.  The applicant states:

* His promotion packet was submitted in May 2011 after discovery of state procedures which were not being disseminated following his initial date of eligibility, 13 January 2011
* His promotion documents were forwarded to his battalion S-1 upon being informed of additional requirements for promotion and follow-up emails went out inquiring about the status of his promotion
* The state administrative clerk requested additional documents be added to the promotion packet although many of those documents were included in the original packet
* The request for additional documents was not received until months after the original packet had been submitted
* State personnel neither understood nor were they correctly interpreting the requirements for promotion from warrant officer one (WO1) to CW2
* It should be an automatic promotion if the Soldier meets all the requirements (time in grade, education, etc.)

3.  The applicant provides:

* DA Form 1559 (Inspector General Request Form)
* Multiple email exchange from the Office of the Inspector General
* Promotion Worksheet
* Statement in Lieu of Current Medical Examination
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 3349 (Physical Profile)
* DD Form 2807 (Report of Medical History)
* DD Form 2808 (Report of Medical Examination)
* Recommendation for a medical waiver
* DA Form 4186 (Medical Recommendation for Flying Duty)
* High School Diploma
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 7349 (Initial Medical Review – Annual Medical Certificate)
* Extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)
* Army portal promotion printout

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Marine Corps, the U.S. Navy, and the ARNG the applicant was appointed as a Reserve WO in the California ARNG (CAARNG) and executed an oath of office on 13 January 2009. 

2.  On 13 August 2009, the National Guard Bureau (NGB) published Special Orders Number 198 AR extending him Federal recognition for his initial appointment in the ARNG, effective 13 January 2009.

3.  He entered active duty for training (ADT) on 13 January 2009.  He completed the Initial Entry Rotary Wing Aviator (UH-60) Pilot training course at Fort Rucker, AL, from 13 January 2009 to 23 November 2010 and he was awarded military occupational specialty (MOS) 153D (UH-60 Pilot).  He was honorably released from ADT on 23 November 2010. 

4.  On 22 December 2010, the FLARNG issued Orders 356-003 relieving him from assignment to the CAARNG and appointing him as a WO1 in the FLARNG, effective 1 December 2010. 

5.  On 1 December 2010, he was transferred to the FLARNG.  Accordingly, the NGB issued Special Orders Number 29 AR extending him Federal recognition for this transfer.  He was assigned to Company C, 1st Battalion, 244th Aviation.

6.  His records do not contain a copy of the Federal Recognition Board proceedings which would have been held by the FLARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW2.  However, on 24 October 2011, the FLARNG published Orders 297-035 promoting him to CW2 effective 21 October 2011.

7.  On 22 February 2012, NGB Special Orders Number 66 AR were published extending Federal recognition to the applicant for his promotion to CW2 effective 15 February 2012.

8.  An advisory opinion was obtained on 3 October 2012 from the NGB in the processing of this case.  An NGB official recommended approval to adjust the applicant's DOR to reflect 1 September 2011.  The official stated:

	a.  The applicant executed an oath of office in the ARNG on 13 January 2009. He completed the Officer Basic Course on 23 November 2010.  In accordance with National Guard Regulation (NGR) 600-101 ((Warrant Officers - Federal Recognition and Related Personnel Actions), table 7-1 and Table 7-2, he became eligible for promotion to CW2 on 13 January 2011.  He contends that he originally submitted the promotion packet in May 2011 but the State failed to submit his promotion packet to the NGB in a timely manner. 

	b.  According to an email, dated 23 August 2012, from the FLARNG, his original promotion packet was submitted on 19 May 2011.  Given that the packet was misplaced by his battalion and assuming a 30-day processing period, the packet would have arrived at the NGB, Federal Recognition Section, on or about 18 June 2011.  At the time, the new scrolling process was in effect with an approximate processing time of 75 days giving the applicant an effective date of 1 September 2011.  

	c.  Upon coordination with the NGB Federal Recognition Section, his packet was received on 8 November 2011.  Orders were published and he was promoted on 15 February 2012, on the same date the scroll was signed. 

	d.  Taking into consideration the amount of time that elapsed between his original submission and when Federal recognition was granted and due to no fault of the applicant, the recommended effective date seems fair and equitable.  

	e.  NGR 600-101, paragraph 7-2 states in pertinent part "promotions will be based on Department of the Army duty proponent 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 a Federal Recognition Board.  

	f.  The State concurs with this recommendation. 
9.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer 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 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 warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, two years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the APFT.

11.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers 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 warrant officer 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 (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army, 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 he met the eligibility criteria for promotion to CW2 on 13 January 2011 in that he was in an active status and was qualified in his MOS.  Since his DOR as a WO1 was 13 January 2009 and since he needed 2 years time in grade for promotion to CW2, he normally would have been promoted on 13 January 2011, prior to the statutory change.

2.  It is unclear why his promotion packet was not forwarded to the NGB Federal Recognition Section until November 2011.  It is equally unclear why the State did not issue the promotion order until 21 October 2011.  Given the 90-day to a   120-day turn-around of the Federal recognition process, the promotion date of  15 February 2012 appears reasonable.  

3.  More importantly, however, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a WO to CW2 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.

4.  In view of the foregoing evidence and the change in law, notwithstanding the favorable advisory opinion submitted by the NGB, 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)                                         AR20110021250



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ABCMR Record of Proceedings (cont)                                         AR20110021250



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