IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110025095 


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) as a chief warrant officer three (CW3) from 6 September 2011 to 18 April 2011 with entitlement to back pay and allowances.

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 the NGB in processing promotion actions
* In his case, a Federal Recognition Board (FRB) recommended him for promotion to CW3 on 13 March 2011
* The NGB published the Federal recognition order with an effective date of 6 September 2011
* The NGB received a large number of warrant officer (WO) promotions but they were not prepared to process these actions which caused a backlog
* Additional time was needed for the Secretary of Defense to sign letters of forgiveness to the Defense Finance and Accounting Service to forgive debt incurred due to prior erroneous promotions
* It should not have taken the NGB 5 months to process his packet; he was fully qualified for promotion and assigned to a higher grade position in December 2010
* The error cost him financial loss and has an impact on his future promotions
* The member should not be penalized due to lack of planning by the NGB 

3.  The applicant provides:

* NGB Form 89 (Processing of a Federal Recognition Examination Board)
* State promotion Orders 347-813
* NGB Policy regarding the change in time in grade for promotion to warrant officer two (CW2) and CW3
* NGB Special Orders Number 102 AR, dated 30 April 2007
* NGB Special Orders Number 211 AR, dated 7 September 2011
* NDAA Changes to WO Federal Recognition Process – Information Paper

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve WO in the Alabama Army National Guard (ALARNG) and executed an Oath of Office on 20 May 2005.

2.  He attended and successfully completed the Unit Maintenance WO Basic Course from 27 February to 31 May 2006.  He was awarded military occupational specialty (MOS) 915A (Unit Maintenance Officer).

3.  He was promoted to CW2 and extended Federal recognition with an effective date and DOR of 18 April 2007.  

4.  He entered active duty on 30 June 2007 and subsequently served in Iraq from 18 August 2007 to 19 June 2008.  He was honorably released from active duty on 3 August 2008.

5.  He attended and successfully completed the Senior Automation Maintenance Officer – WO Advanced Course (WOAC) from 16 February 2010 to 14 May 2010. 

6.  On 17 March 2011, a FRB was held by the ALARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW3. The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FRB also recommended that he be granted Federal recognition.   

7.  On 13 December 2010, the ALARNG published Orders 347-813 promoting the applicant to CW3 with an effective date and DOR of 5 December 2010. 

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

9.  On 7 September 2011, the NGB published Special Orders Number 211 AR extending him Federal recognition for promotion to CW3 effective 6 September 2011.

10.  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.

11.  National Guard Regulation (NGR) 600-101 (WOs - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WOs 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.

12.  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 NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states, in pertinent part, that the minimum time in grade for promotion to CW3 is 4 years in the lower grade.  Table 7-2 states, in pertinent part, that the minimum military education requirement for promotion to CW3 is completion of the common core prerequisite correspondence studies and the duty MOS WOAC or equivalent.

13.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WOs 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 WO 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 DOR as a CW2 was 18 April 2007 and he completed WOAC on 14 May 2010.  He met the minimum time-in-grade requirements for promotion to CW3 on 18 April 2011 and he was favorably considered by a State board that appears to have 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 6 September 2011 despite his having met promotion qualification on 18 April 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 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)                                         AR20110025095



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ABCMR Record of Proceedings (cont)                                         AR20110025095



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