IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110025187


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 two (CW2), from 2 December 2011 to             11 September 2011. 

2.  The applicant states:

* prior to enactment of the 2011 National Defense Authorization Act (NDAA), Army National Guard (ARNG) officers were promoted by the Chief, National Guard Bureau (NGB) and the Secretary of the Army, under the provisions of Title 32, U.S. Code
* 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) held by the Montana ARNG (MTARNG) on 7 July 2011 recommended his promotion to CW2 on 8 July 2011, with a date of rank of 11 September 2011
* The NGB published the Federal recognition order with an effective date of 2 December 2011

3.  The applicant provides:

* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* Orders 189-005, Joint Forces Headquarters – Montana, MTARNG, dated 8 July 2011
* Special Orders Number 318 AR, NGB, dated 13 December 2011

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve warrant officer (WO) in the MTARNG and executed an oath of office on             11 September 2009.

2.  He attended and successfully completed the Unit Maintenance Officer Warrant Officer Basic Course (WOBC) from 1 February to 12 February 2010.   He was awarded military occupational specialty (MOS) 915A (Unit Maintenance Technician (Light)) effective 12 February 2010.

3.  On 7 July 2011, an FRB was held by the MTARNG to determine if he was qualified to be awarded Federal recognition as a CW2.  The proceedings show the board found him physically, morally, generally and professionally qualified for Federal recognition as a CW2.

4.  Orders 189-005, MTARNG, dated 8 July 2011, promoted him to CW2 with an effective date and date of rank of 11 September 2011. 

5.  Special Orders Number 318 AR, NGB, dated 13 December 2011, extended him Federal recognition for his promotion to CW2 effective 2 December 2011.

6.  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.

7.  National Guard Regulation (NGR) 600-101 (Warrant Officers - 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 an FRB.

8.  A warrant officer 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 CW2 is 2 years in the lower grade.  Table 7-2 states, in pertinent part, that the minimum military education requirement for promotion to CW2 is completion of the WOBC.

9.  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 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.  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 WO1 was 11 September 2009 and he completed WOBC on 12 February 2010.  He met the minimum time-in-grade requirements for promotion to CW2 on 11 September 2011 and he was favorably considered by an FRB that found him physically, morally, generally and professionally qualified for Federal recognition as a CW2.
The NGB issued him Federal recognition orders for promotion to CW2 effective  2 December 2011, despite his having met promotion qualification on                  11 September 2011. 

2.  As a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a WO1 to CW2 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)                                         AR20110020111



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ABCMR Record of Proceedings (cont)                                         AR20110025187



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