BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110021286 


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 date of rank (DOR) to chief warrant 
officer four (CW4) from 12 August 2011 as indicated in his Federal recognition orders to 25 January 2011 as indicated in his State promotion orders.

2.  The applicant states his promotion was unduly delayed due to a change in public law stipulated in the 2011 National Defense Authorization Act (NDAA).  National Guard Bureau (NGB) and Department of the Army did not have Federal recognition procedures in place to accommodate the change caused by NDAA.  Federal recognition procedures had to be created, staffed, reviewed, and established causing a 6-month delay while his packet was waiting approval.  New policy issued in May 2011 by the NGB encourages promotion packets to be forwarded 90 days earlier to allow processing time in the new system.  This policy was developed after his packet was already being processed.  NDAA does not stipulate the promotion effective date which should allow the effective date to be retroactive to the effective date of the State promotion order. 

3.  The applicant provides three memoranda, an information paper, two orders, and a 3-page printout.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant was appointed as a chief warrant officer two (CW2) in military occupational specialty (MOS) 152B (OH-58A/C 


Scout Pilot) in the Pennsylvania ARNG (PAARNG) and executed an oath of office on 21 May 2005.  He was promoted to chief warrant officer three (CW3) and extended Federal recognition with a DOR and effective date of 21 January 2006.

2.  He attended and successfully and completed the Maintenance Test Pilot course from 24 March to 1 May 2009 and he was awarded MOS 154C (CH-47D Maintenance Test Pilot).

3.  He attended and successfully completed the WO Staff Course from 3 February to 3 March 2010 at Fort Rucker, AL.

4.  On 25 January 2011, a Federal Recognition Board (FRB) was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW4.  The applicant was found to be satisfactory in his physical qualifications, moral character, and general qualifications.

5.  On 1 February 2011, the PAARNG published Orders 032-1082 promoting him to CW4 with a DOR and effective date of 25 January 2011.

6.  On 18 August 2011, NGB published Special Orders Number 189 AR extending him Federal recognition for promotion to CW4 with a DOR and effective date of 12 August 2011.

7.  On 1 February 2012, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request to adjust his DOR to CW4 from 12 August 2011 to 25 January 2011.   The advisory official stated effective 7 January 2011 the NDAA mandated that all promotions for WO, regardless of component and appointments, be signed by the President of the United States.  This change removed NGB authority to approve and publish WO Federal recognition orders.  The delay in the processing of applicant's promotion packet was due to the implementation of new guidance to comply with the law.  Though the procedural delay was no fault of the applicant, the change in public law was effective before his promotion packet was submitted.  Therefore, his DOR should remain 12 August 2011. 

8.  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.


9.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), 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.

10.  National Guard Regulation 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 military occupational specialty 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.

11.  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 National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum time in grade for promotion to CW4 is 5 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW4 is completion of the WO Staff Course.

12.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that ARNG WO's 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, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's 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 the applicant's DOR as CW3 was 21 January 2006 and he completed the WO Staff Course in March 2010.  He met the minimum time-in-grade and education requirements for promotion to CW4 and he was favorably considered by an FRB on 25 January 2011 that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  He was also issued State orders promoting him to CW4 effective 25 January 2011.  NGB issued him Federal recognition orders for promotion to CW4 effective 12 August 2011.

2.  However, as a result of the 2011 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 WO's that was mandated by the 2011 NDAA that WO's 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 WO's, and probably WO's 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 WO's 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 changed.


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)                                         AR20110021286



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ABCMR Record of Proceedings (cont)                                         AR20110021286



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