IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110022844 


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) as a chief warrant officer three (CW3) from 28 October 2011 to 18 April 2011 with entitlement to back pay and allowances.

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) recommended him for promotion to CW3 on 1 April 2011
* The NGB published the Federal recognition order with an effective date of 28 October 2011

3.  The applicant provides:

* Email regarding the 2011 NDAA
* NGB Special Orders Number 284 AR, dated 4 November 2011


CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted and commissioned officer service, the applicant was appointed as a Reserve warrant officer (WO) in the Tennessee Army National Guard (TNARNG) and executed an Oath of Office on 7 March 2005.

2.  He attended and successfully completed the Supply Systems Technician 
WO Basic Officer Course from 25 April to 29 June 2005.  He was awarded military occupational specialty (MOS) 920A (Supply Systems Technician).

3.  He was promoted to chief warrant officer two (CW2) and extended Federal recognition with an effective date and DOR of 18 April 2007.  

4.  On 1 September 2009, he was issued a Notification of Eligibility for Retired pay at Age 60 (20-year letter). 

5.  On 10 April 2011, the TNARNG published Orders 108-810 promoting the applicant to CW3 with an effective date and DOR of 18 April 2011. 

6.  He completed the Human Resources Technician WO Advanced Course (WOAC) from 3 to 15 April 2011.  

7.  On 4 November 2011, the NGB published Special Orders Number 284 AR extending him Federal recognition for his promotion to CW3 effective 28 October 2011.

8.  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.

9.  National Guard Regulation (NGR) 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 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.  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.  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 18 April 2007 and he completed WOAC on 15 April 2011.  He met the minimum time-in-grade requirements for promotion to CW3 on 1 April 2011 and he was favorably considered by a State board that appears to have found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  The NGB issued him Federal recognition orders promoting him to CW3 effective 
28 October 2011 despite that he met promotion qualifications on 18 April 2011. 

2.  However, as a result of the 2011 NDAA, the promotion of a CW2 to CW3 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 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)                                         AR20110022844



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ABCMR Record of Proceedings (cont)                                         AR20110022844



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