BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20110024466 


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) as a chief warrant officer three (CW3) in the Arizona Army National Guard (AZARNG) from 11 August 2011 to 8 February 2011.

2.  The applicant states:

* prior to the 2011 National Defense Authorization Act (NDAA), 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 NGB in processing promotion actions
* in her case, a Federal Recognition Board (FRB) recommended her for promotion to CW3 on 8 February 2011 and forwarded the recommendation to NGB on 10 February 2011
* NGB published Federal recognition orders with an effective date of 11 August 2011
* NGB received a large number of warrant officer (WO) promotions and they were not prepared to process these actions which caused a backlog
* additional time was needed for the Secretary of Defense to sign letters to the Defense Finance and Accounting Service to forgive debt incurred due to prior erroneous promotions
* it should not have taken the NGB this many months to process her packet
* she was fully qualified for promotion – the member should not be penalized due to lack of planning by the NGB

3.  The applicant provides:

* NGB Special Orders Number 188 AR, dated 16 August 2011
* promotion memorandum
* a breakdown of the scroll
* AZARNG Orders 040-603 and amendment Orders 041-600
* NGB Form 89 (Processing of a Federal Recognition Examination Board)
* Individual Medical Readiness printout
* Personnel Qualification Record
* recommendation for promotion memorandum
* Federal recognition packet
* DA Form 705 (Army Physical Fitness Test Scoresheet)
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Reserve WO in the AZARNG and executed the oaths of office on 4 February 2005.

2.  She attended and successfully completed the Military Personnel Technician WO Basic Course from 9 September to 18 November 2005.  She was awarded military occupational specialty (MOS) 420A (Military Personnel Technician).

3.  She was promoted to chief warrant officer two (CW2) and was extended Federal recognition with an effective date and DOR of 26 January 2007.

4.  She entered active duty on 1 December 2007 and she was honorably released from active duty on 7 February 2009.

5.  She attended and successfully completed the Human Resources Warrant Officer Advanced Course (WOAC) from 9 February 2009 to 2 April 2009.

6.  On 9 December 2010, her chain of command recommended her for promotion to CW3.  The recommendation indicated she was fully qualified (military and civilian education, height, weight, and physical fitness) for promotion.

7.  On 8 February 2011, an FRB was held by the AZARNG to determine if the applicant was qualified for award of Federal recognition for promotion to CW3.  The proceedings indicated the applicant was satisfactory in her physical qualifications, moral character, and general qualifications.  The FRB also recommended her Federal recognition.

8.  On 9 February 2011, the AZARNG published Orders 040-603 promoting the applicant to CW3 with an effective date and DOR of 8 February 2011.  The orders clearly stated the applicant would not be paid at the higher rank until Federal recognition was confirmed.

9.  On 17 March 2011, the AZARNG published Orders 076-854 promoting the applicant to CW3 with an effective date and DOR of 18 April 2011.

10.  On 10 February 2011, the AZARNG published amendment Orders 041-600 assigning her to the position of Human Resources Technician.

11.  On 16 August 2011, NGB published Special Orders Number 188 AR extending her Federal recognition for promotion to CW3 effective 11 August 2011.

12.  An advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, in the processing of this case.  He recommended denial of the applicant's request with the State's concurrence and stated:

	a.  The Soldier's promotion packet was submitted after the effective date of the below referenced guidance.

	b.  Personnel Policy Operational Message Number 11-015, dated 14 June 2011, paragraph 2(b), states, in part, "…introduce a requirement that all WO promotions to chief warrant officer grades in the Army National Guard of the Unites [sic] States (ARNGUS) be made by the POTUS [President of the United States]."  Paragraph 5(a) of the same message states, in part, "…effective 7 January 2011, all initial appointments of warrant officers and appointments in a higher grade (promotion), by warrant or commission, will be issued by the POTUS.  Request for appointments will be staffed through the Department of the Army, Assistant Chief of Staff, G-1.  This requirement may add 90 days or more to the process of approval for appointment as a Reserve Warrant Officer of the Army to be completed."

	c.  The delay of which the Soldier complains results from a change in the procedures for promotion of WO's that was mandated by NDAA 2011, in that WO promotions will be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.  The law took effect 7 January 2011.  Following this date, there was a period of time in which the procedures for processing WO appointments and promotion scrolls were developed and refined.  Though this process was modeled on the existing process for scrolling officer appointments and promotions, there was still a period during which the WO scrolling process was being perfected.  This developmental process did result in the delay of promotions of all ARNG WO's – and probably WO's from other components – recommended for promotion during the months immediately following the enactment of the scrolling requirement.  The delay was not the result of "error" or "injustice" as much as it was the inherent consequence of elevating the appointment and promotion authority for WO's to such a high level.  While it is true that processing time has been materially reduced as the Service has learned how to streamline the new process, the fact remains that the delay of which the Soldier complains is an organic feature of the new scheme mandated by Congress and not an "error" or "injustice" particular to her case.

13.  The applicant responded to the advisory opinion on 4 December 2012.  She stated she had obtained email correspondence and lists from both the AZARNG G-1 staff as well as NGB stating that the redefined process was in effect in either April or May 2011 and another email which indicated June 2011.  By using this data, she determined promotion packets from January through April were not processed until after promotion packets for May through June were processed and this resulted in WO's junior by DOR getting promoted before WO's senior by DOR.  She also provides email and an Information Paper, dated 22 July 2011, subject:  NDAA 2011 Changes to WO Federal Recognition Process.

14.  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 or her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.

15.  National Guard Regulation 600-101 (WO's – 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 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.

16.  A WO must complete the minimum years of promotion service as shown in National Guard Regulation 600-101, table 7-1, and the educational requirements of table 7-2 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum time in grade for promotion to CW3 is 4 years in the lower grade.  Table 7-2 states the minimum military educational requirement for promotion to CW3 is completion of the common core prerequisite correspondence studies and the duty MOS WOAC or equivalent.

17.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states ARNG WO's 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 WO grades in the ARNG be made by the POTUS.  As a result all initial appointments of WO's and promotion to higher grades by warrant or commission will be issued by the President (delegated to the Secretary of Defense) effective 7 January 2011.  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 DOR as a CW2 was 26 January 2007 and she completed WOAC on 2 April 2009.  She met the minimum time-in-grade requirement for promotion to CW3 on 26 January 2011 and she was favorably considered by a State board that appears to have found her fully satisfactory in her physical qualifications, moral character, and general qualifications.  NGB issued Federal recognition orders for her promotion to CW3 effective 11 August 2011 despite her having met promotion qualification on 26 January 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 WO's that was mandated by the 2011 NDAA in that WO's would 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 WO's – and probably WO's 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 WO's to such a high level.  While it is true that processing time has been materially reduced as the Service has 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.  Although the applicant contends promotion packets from January through April were not processed until after promotion packets for May through June were processed and this resulted in WO's junior by DOR getting promoted before WO's senior by DOR, she provides no inspector general investigation report of this or any other evidence to support this contention.   Therefore, this issue is without merit.

4.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion appears to be 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 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)                                         AR20110024466



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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