IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110022007 


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 effective date and date of rank (DOR) to chief warrant officer two (CW2) from "16" August 2011 to 25 February 2011.

2.  The applicant states his effective date and DOR to CW2 should be adjusted based on State Promotion Orders Number 007-001, dated 7 January 2011, which is the date the Federal Recognition Examining Board (FREB) approved his promotion.

3.  He also states:

* Prior to enactment of 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, an FRB held by the Montana ARNG (MTARNG) on 16 December 2010 recommended his promotion to CW2
* State promotion orders were published on 7 January 2011 promoting him to CW2 with an effective date and DOR of 25 February 2011
* His State forwarded the appropriate documents to the NGB on 7 January 2011 for issuance of Federal recognition orders
* The NGB published Special Orders Number 188 AR, dated 16 August 2011 that extended him Federal recognition effective 11 August 2011 for his promotion to CW2 as opposed to the effective date and DOR of 25 February 2011 shown on his State promotion orders 

4.  The applicant provides:

* NGB Form 89 (Proceedings of an FREB)
* Orders 007-001, issued by the MTARNG, dated 7 January 2011
* NGB Special Orders Number 188 AR, dated 16 August 2011

CONSIDERATION OF EVIDENCE:

1.  On 25 February 2009, the applicant was initially appointed as a Reserve warrant officer (WO) in the MTARNG.  He attended and successfully completed the WO Basic Course on 8 July 2010, and he was awarded military occupational specialty 154C (CH-47D Pilot).  As a result, he was extended Federal recognition for the rank of warrant officer one (WO1), effective 8 July 2010.

2.  On 16 December 2010, an FREB was held by the MTARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW2.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

3.  On 7 January 2011, the MTARNG published Orders 007-001 promoting the applicant to CW2 with an effective date and DOR of 25 February 2011. 

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

5.  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/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.

6.  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 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 FREB.

7.  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 WO1 was 25 February 2009.  He was favorably considered by an FREB that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  He was also issued a State order promoting him to CW2, effective 25 February 2011.  The NGB issued him Federal recognition orders promoting him to CW2, effective 11 August 2011.

2.  However, as a result of the 2011 National Defense Authorization Act (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.

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for promoting WOs that was mandated by the 2011 NDAA which required WOs to 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.  Following was 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 resulted in the delay of the promotions of all ARNG WOs and WOs from other components that were 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 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 the law the applicant's effective date of promotion appears to be appropriate and reasonable and it 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)                                         AR20110022007



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ABCMR Record of Proceedings (cont)                                         AR20110022007



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