IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110025083 


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 his date of rank (DOR) to chief warrant 
officer four (CW4) from 15 December 2011 as indicated in his Federal recognition orders to 11 August 2011 as indicated in his State promotion orders.

2.  The applicant states:

* prior to the 2011 National Defense Authorization Act (NDAA), Army National Guard (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 his case, a Federal recognition board (FRB) held by the Washington ARNG (WAARNG) on 11 August 2011 recommended his promotion to CW4 
* his State published orders on 12 August 2011 promoting him to CW4 with an effective date of 11 August 2011
* his State forwarded the appropriate documents to NGB right after the State FRB
* NGB published Federal recognition orders with an effective date of 15 December 2011 as compared to the DOR of 11 August 2011 shown on his State orders

3.  The applicant provides:

* WAARNG Orders 224-933, dated 12 August 2011
* NGB Special Orders Number 333 AR, dated 19 December 2011

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the ARNG, the applicant was appointed as a Reserve warrant officer (WO) in the ARNG and executed an oath of office on 28 January 1994.

2.  He attended and successfully completed the Military Personnel Technician WO Basic Officer Course and he was awarded specialty 152B (OH-58A/C Scout Pilot).  He was promoted to chief warrant officer three (CW3) and extended Federal recognition with a DOR and effective date of 9 September 2002.

3.  He successfully attended and completed the WO Staff Course from 4 August to 29 August 2008 at Fort Rucker, AL.

4.  On 11 August 2011, an FRB was held by the WAARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW4.  The applicant was found to be satisfactory in his physical qualifications, moral character, and general qualifications.

5.  On 12 August 2011, the WAARNG published Orders 224-933 promoting him to CW4 with a DOR and effective date of 11 August 2011.

6.  On 19 December 2011, NGB published Special Orders Number 333 AR extending him Federal recognition for promotion to CW4 with a DOR and effective date of 15 December 2011.

7.  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.

8.  National Guard Regulation 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 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 military occupational specialty 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.

9.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 of National Guard Regulation 600-101 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 CW4 is 5 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW4 is completion of the WO Staff Course.

10.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that 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, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, 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).  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 CW3 was 9 September 2002 and he completed the WO Staff Course in August 2008.  He met the minimum time-in-grade and education requirements for promotion to CW4 and he was favorably considered by an FRB on 11 August 2011 that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  He was also issued State orders promoting him to CW4 effective 11 August 2011.  NGB issued him Federal recognition orders for promotion to CW4 effective 15 December 2011.

2.  However, as a result of the 2011 NDAA, the promotion of a CW3 to CW4 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 that WO's 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 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 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 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)                                         AR20110025083



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ABCMR Record of Proceedings (cont)                                         AR20110025083



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