IN THE CASE OF:	  

		BOARD DATE:  22 February 2012

		DOCKET NUMBER:  AR20110023282 


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 adjustment of his Federal recognition order for promotion to chief warrant officer two (CW2) from 28 October 2011 to 19 May 2011. 

2.  The applicant states the 2011 National Defense Authorization Act (NDAA) removed the National Guard Bureau (NGB) authority to approve and publish all WO Federal Recognition Orders.  All WO appointments and promotions were required to go on a scroll and processed through various channels from the Army G-1 up to the Secretary of Defense.  His promotion packet was boarded on the Federal Recognition Board and uploaded on 19 May 2011 to NGB.

	a.  NGB requested a state order for a military occupational specialty (MOS) change 24 May 2011 that was already loaded under the "exception" tab when the packet was loaded.

	b.  According to the Federal Recognition order he received on 4 November 2011 his date of rank was 5 months past his original date of rank of 19 May 2011.

	c.  The Officer Policy Branch was not set up to receive a large number of warrant officer promotion/appointment packets from the states.  If Warrant Officer Policy had been notified about the change, there would have been enough time to get everything in place and it would not have taken 5 months to process his promotion packet.

3.  The applicant provides:

* NGB Special Orders Number 162 AR, dated 2 July 2009
* Joint Force Headquarters, Tennessee National Guard (TNNG) Orders 139-823, dated 19 May 2011
* NGB Special Orders Number 284 AR, dated 4 November 2011
* an information paper on the NDAA 2011 changes to the Warrant Officer Federal Recognition Process, dated 22 July 2011

CONSIDERATION OF EVIDENCE:

1.  He was appointed a warrant officer one (WO1) on 28 April 2009 in the Tennessee Army National Guard (TNARNG).  He had 13 years, 4 months, and 16 days of previous enlisted service.

2.  He completed the Unit Maintenance Officer, Warrant Officer Basic Course (WOBC) on 1 July 2010.

3.  Joint Force Headquarters, TNNG Orders 139-823, dated 19 May 2011, promoted him to CW2, effective 19 May 2011, as a vacancy promotion.

4.  NGB Special Orders Number 284 AR, dated 4 November 2011, extended him Federal recognition for CW2, effective 28 October 2011, and changed his MOS to 001A.

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 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 (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 a Federal Recognition Board.
	a.  Table 7-1 states the minimum time in grade for promotion to CW2 is 2 years in the lower grade.  

	b.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WOBC within 2 years from date of initial appointment as WO1.

7.  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 introduced 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 (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 date of rank as a WO1 was 
28 April 2009 and he completed WOBC on 7 July 2010.  He met the minimum time-in-grade requirements for promotion to CW2 on 28 April 2011 and he was promoted by the Stated on 19 May 2011.  The NGB issued him Federal recognition orders for promotion to CW2 effective 28 October 2011 despite his promotion orders dated 19 May 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 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 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)                                         AR20110023282



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ABCMR Record of Proceedings (cont)                                         AR20110023282



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