BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20110023520 


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 Federal recognition order for promotion to chief warrant officer three (CW3) from 12 August 2011 to               16 February 2011.

2.  The applicant states his promotion packet was delayed for 6 months due to an administrative error and a lack of clear guidance from the Office of The Judge Advocate General and the Army G-1.  He also states the delay has caused him a loss of $3,726.00 in pay.

3.  The applicant provides copies of his State promotion orders, Federal Recognition orders, Proceedings of a Federal Recognition Examining Board, and memoranda from the National Guard Bureau (NGB).

CONSIDERATION OF EVIDENCE:

1.  On 16 February 2005, the applicant was appointed as a warrant officer one (WO1) in the Minnesota Army National Guard (MNARNG) and he was promoted to the rank of chief warrant officer two (CW2) on 16 February 2007.

2.  On 16 February 2011, the MNARNG published Orders 047-1001 promoting the applicant to CW3 with an effective date and date of rank of 16 February 2011. 


3.  On 16 August 2011, the NGB published Special Orders Number 189 AR extending him Federal recognition in the rank of CW3 effective 12 August 2011.

4.  In the processing of this case a staff advisory opinion was obtained from the NGB which recommended that the applicant’s request be disapproved.  Officials at the NGB opined, in effect, that the delay in the applicant’s Federal Recognition was due to a change in the law that required warrant officers (WO's) to be approved at a higher level and it took a period of time to refine the process; however, the delay was not the result of an error or injustice specifically related to his case.  The advisory opinion was provided to the applicant for comment and to date the staff of the Board has not received a response.

5.  National Guard Regulation (NGR) 600-101 (WO's - 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 (FRB).

6.  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 date of rank as a CW3 was determined by the MNARNG to be 16 February 2011.  He was considered by an FRB that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  The NGB issued him Federal recognition orders for promotion to CW3 effective 12 August 2011 despite that he met promotion qualification on 16 February 2011. 

2.  However, as a result of the 2011 National Defense Authorization Act (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)                                         AR20110023520



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ABCMR Record of Proceedings (cont)                                         AR20110023520



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