IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110024942 


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 five (CW5) from 11 August 2011 to 
15 February 2011, the date he was eligible for promotion.

2.  The applicant states there was a massive change in procedures in the Army National Guard Warrant Officer Federal Recognition process. The delay in reaction to these changes and development of a process was in no way his fault.

	a.  His date of rank should be adjusted to reflect the date he was eligible for promotion, 15 February 2011.  He appeared before a Federal Recognition Board on 19 January 2011 and was approved for promotion to the next higher grade.  The State order was published and the Federal Recognition packet was submitted to the National Guard Bureau (NGB).  

	b.  The National Defense Authorization Act was signed on 7 January 2011 and unbeknownst to the Army National Guard at the Bureau level this impacted the promotion Federal Recognition approval process.  This resulted in delays of dissemination of information to the states on the changes in the process.

	c.  The process changes and impact to the timely promotion of warrant officers throughout the Army National Guard will result in further delays in the his career progression due to no fault of the his own.


3.  The applicant provides:

* Joint Force Headquarters, Kansas Orders 021-719, dated 21 January 2011
* NGB Special Orders Number 188 AR, dated 16 August 2011
* NGB memorandum dated 14 June 2011
* NGB memorandum dated 22 July 2011
* an information paper on the NDAA 2011 changes to the Warrant Officer Federal Recognition Process, dated 22 July 2011
* NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers in the ARNG, dated 14 June 2011
* excerpts from National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) effective 
1 October 1996
* excerpts from National Guard Regulation 600-101 effective 26 October 2006

CONSIDERATION OF EVIDENCE:

1.  He was appointed a warrant officer one (WO1) on 30 October 1991 in the Kansas Army National Guard (KSARNG).  He had 13 years, 4 months, and 24 days of previous service in an enlisted status in the KSARNG.  He was promoted to chief warrant officer four (CW4) on 15 February 2006.

2.  He completed the Warrant Officer Senior Staff Course (WOSSC) on 
20 August 2010.

3.  Joint Force Headquarters, Kansas Orders 021-719, dated 21 January 2011, promoted him to CW5 effective 15 February 2011.

4.  NGB Special Orders Number 188 AR, dated 16 August 2011, extended him Federal recognition for CW5, effective 11 August 2011.

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 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 CW5 is 5 years in the lower grade.  

	b.  Table 7-2 states the minimum military education requirement for promotion to CW5 is completion of the WOSSC.  

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.  His date of rank as a CW4 was 15 February 2006 and he completed WOSSC on 20 August 2010.  He met the minimum time-in-grade requirements for promotion to CW5 on 15 February 2011 and he was promoted by the State effective 15 February 2011.  The NGB issued him Federal recognition orders for promotion to CW5 effective 11 August 2011 despite his having met promotion qualification on 15 February  2011. 

2.  However, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a CW4 to CW5 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)                                         AR20110024942





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ABCMR Record of Proceedings (cont)                                         AR20110024942



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