DOCKET NUMBER:  AR20110023144 


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 a change of his date of rank (DOR) to chief warrant officer two (CW2) from 28 October to 4 March 2011.

2.  The applicant states his promotion to CW2 was due on 4 March 2011 which was 2 years from the date he graduated from Warrant Officer (WO) Candidate School.  He contends that he turned in his promotion paperwork on 12 February 2011 while deployed to Iraq and he believes there was an issue with obtaining the appropriate signatures which delayed the process.  His promotion was shown as pending on the National Guard Bureau (NGB) applications site in March but it was kicked back due to an error.  He continues that around July 2011 he was notified of a change in policy for WO promotions that would delay the process by 2 or 3 months.  At the time of the notification, his paperwork had been submitted 6 months prior and the delay in the processing of his promotion paperwork was not his fault.  

3.  The applicant provides several email messages, his promotion packet, and promotion orders.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U.S. Air Force, the applicant enlisted in the Vermont Army National Guard (VTARNG).  He was promoted to staff sergeant/E-6 on 1 March 2008.

2.  He graduated from the WO Candidate School on 4 March 2009.

3.  Special Orders Number 99 AR, issued by the NGB, dated 21 April 2009, extended the applicant Federal recognition for his initial appointment to WO1 effective 4 March 2009.

4.  Orders 159-003, dated 8 June 2011, promoted the applicant to CW2 with an effective date and DOR of 22 March 2011.

5.  Special Orders Number 284 AR, issued by the NGB, dated 4 November 2011, extended the applicant Federal recognition for promotion to CW2, effective 
28 October 2011.

6.  In connection with the processing of this case, an advisory opinion was obtained from the NGB, Chief Personnel Policy Division.  This office recommended denial of the applicant's request.  

7.  The advisory opinion was mailed to the applicant for his information and to provide him the opportunity to submit comments or a rebuttal.  No response was received.  

8.  He provided several email messages related to the processing of his promotion to CW2 which supports his contention that he submitted his promotion packet on 2 February 2011.

9.  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/her 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 (WOs - 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 a Federal Recognition Board.
11.  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 introduced 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 VTARNG promoted him to CW2 with an effective date and DOR of 22 March 2011.  

2.  The evidence also shows the NGB issued him Federal recognition orders promoting him to CW2, effective 28 October 2011.

3.  As a result of the 2011 National Defense Authorization Act (NDAA) of 2011, the promotion of WOs is now issued by the President of the United States and is delegated to the Secretary of Defense.  The delay in his promotion resulted from a statutory change in the procedures for promoting WOs that was mandated by the 2011 NDAA that 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.  There followed a period of time during which the procedures for processing WO appointment and promotion scrolls were developed and refined.

4.  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 probably WOs from other components that were recommended for promotion during the months immediately following the enactment of the scrolling requirements.

5.  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, however, 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.

6.  In view of the foregoing evidence and the change in the law, the applicant's effective date of promotion seems appropriate and reasonable; therefore, 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)                                         AR20110023144



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ABCMR Record of Proceedings (cont)                                         AR20110023144



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