BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110023170 


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 her date of rank (DOR) for promotion to chief warrant officer three (CW3)/pay grade W-3 from 3 October 2011 to
5 August 2011.

2.  The applicant states on 7 January 2011, the Fiscal Year 2011 (FY11) National Defense Authorization Act (NDAA) was enacted.  It elevated all promotion approvals for Army National Guard (ARNG) of the United States (ARNGUS) warrant officers (WO) from the Chief, National Guard Bureau (NGB), and Secretary of the Army (SA) to the President of the United States.  However, the FY11 NDAA does not stipulate the DOR for WO promotions nor does it state that the effective date cannot be the WO's date of eligibility for promotion.

	a.  Procedures had to be established to staff ARNGUS WO promotion actions above the NGB level.  This resulted in all promotion actions being halted for several months and then administrative delays in the promotion actions as government officials became familiar with the new promotion process.

	b.  In June 2011, written guidance was issued and a correction was made to the guidance in July 2011.  These administrative matters caused delays in all WO promotions that resulted in financial loss and may also adversely affect future promotions due to the delayed promotion eligibility dates (PED) these WOs received.


	c.  In her case, on 20 April 2011, a Federal Recognition (FEDREC) Board (FRB) in the state of California recommended her for promotion to CW3.  On
10 May 2011, she was issued promotion orders with a DOR of 5 August 2011 and the promotion action was sent to the NGB for confirmation.  However, FEDREC of her promotion was not announced by the NGB until 3 October 2011.

3.  The applicant provides copies of her promotion orders, a policy memorandum, and an information paper.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the ARNGUS and California ARNG (CAARNG) from 6 September 1989 through 4 August 2005.

2.  She was appointed as a Reserve WO in the ARNGUS and extended FEDREC as a warrant officer one/pay grade W-1 in the CAARNG effective
5 August 2005.

3.  She was promoted to chief warrant officer two (CW2)/pay grade W-2 effective 5 August 2007.

4.  Headquarters, CAARNG, Sacramento, CA, memorandum, dated 18 April 2011, recommended the applicant for promotion to CW3 (W-3)

5.  NGB Form 89 (Proceedings of a Federal Recognition Examining Board) shows the applicant was found qualified for promotion to CW3.  On 15 June 2011, the board recommended that the applicant be granted Federal recognition in the rank of CW3.

6.  Joint Force Headquarters, CAARNG, Sacramento, CA, Orders 130-1041, dated 10 May 2011, promoted the applicant to CW3 (W-3) in the CAARNG effective 5 August 2011.

7.  Headquarters, NGB, Washington, DC, Special Orders Number 260 AR, dated 20 October 2011, announced the extension of Federal recognition in the ARNGUS of the applicant's promotion to CW3 effective 3 October 2011.

8.  NGB, Arlington, Virginia, memorandum, dated 20 October 2011, subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, shows the applicant was promoted to CW3 in the Reserve of the Army for service in the ARNGUS effective and with a DOR of 3 October 2011.


9.  In support of her application, the applicant provides the following documents:

   a.  NGB, Arlington, VA, memorandum, dated 30 June 2011, subject:  Applications for Appointment as WOs by Commissioned Officers Approaching Mandatory Removal Date (ARNG-HRH Policy Memorandum #11-026), that provides new policy guidance outlining the requirements for commissioned officers seeking appointment as WOs who are less than one year from their mandatory retirement date.
   
   b.  NGB, Arlington, VA, memorandum (corrected copy), dated 26 July 2011, subject:  Guidance Concerning Applications for the FEDREC of WOs
 (ARNG-HRH Policy Memorandum #11-015), that provides guidance to reduce processing time for applications for the federal recognition of ARNG WO initial appointments and appointments to a higher grade.  It shows that the recent change in statute will mean a total increase in process time from 90 to 120 days.
   
   c.  ARNG-HRH, Information Paper, dated 22 July 2011, subject:  NDAA 11 Changes to WO FEDREC Process, that provides background information on the new WO FEDREC process that became retroactive on 7 January 2011.  It also discusses issues that resulted due to late notification of the new requirements for WO appointments/promotions to be signed by the President of the United States.
   
10.  National Guard Regulation (NGR) 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 WOs 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 FRB.

11.  NGB Policy Memorandum 11-015, subject:  Federal Recognition of WOs 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.

	a.  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.

	b.  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 will be staffed through the Department of the Army (Deputy Chief of Staff, G-1) to the Secretary of Defense.  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 was promoted to CW2 (W-2) with a DOR of 5 August 2007.

2.  She was recommended for promotion to CW3 (W-3) by a CAARNG FRB on 15 June 2011 and State orders were issued promoting her to CW3 (W-3) in the CAARNG effective 5 August 2011.

3.  Headquarters, NGB, announced the applicant's promotion as a Reserve commissioned WO of the Army and the extension of Federal recognition in the ARNGUS of the applicant's promotion to CW3 effective 3 October 2011.

4.  As a result of the FY11 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 resulted 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.  Moreover, in the applicant's case, the delay was less than 60 days, whereas the anticipated delay was 90-120 days.  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 Service or applicant.

5.  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 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)                                         AR20110023170



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ABCMR Record of Proceedings (cont)                                         AR20110023170



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