IN THE CASE OF:	  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20110025212 


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 change of his effective date and date of rank (DOR) to chief warrant officer three (CW3)/W-3 from 6 September 2011 to 17 May 2011 on his Federal recognition orders.

2.  He states:

	a.  prior to enactment of National Defense Authorization Act (NDAA) 2011 on 7 January 2011, all Army National Guard (ARNG) warrant officers were promoted by the Chief, National Guard Bureau (NGB) and Secretary of the Army under the provisions of Title 32, U.S. Code.  With the signing of NDAA 2011 into law, all ARNG warrant officer promotions were elevated from the Secretary of the Service level to the President of the United States level.

	b.  when this new provision was signed into law it appears that no one at the appropriate levels was aware of the significant change and impact this would have on the promotion process for ARNG warrant officers.  As a result, no procedures had been established to staff ARNG warrant officer actions above the NGB level in anticipation of this change.  This resulted in all promotion actions being halted for ARNG warrant officers for several months, pending establishment of staffing procedures above NGB level in order to comply with this new provision of law.

	c.  past approval of ARNG warrant officer promotions, to include issuance of Federal recognition orders and DOR awarded as of the date the Federal 


Recognition Board (FRB) was accomplished at NGB level.  This administrative process was very efficient and timely.  However, with this new provision of law being enacted, many individuals above NGB level were added to the staffing process and they had to be educated on the promotion of ARNG warrant officers since they had not handled these actions previously.  This resulted in administrative delays in the promotion actions at various levels to allow staffing officers sufficient time to understand the ARNG warrant officer promotion process.

	d.  the time required to implement this new staffing process resulted in no ARNG warrant officer promotions during the period February 2011 through July 2011.  By the time promotion actions resumed, there was a significant backlog of promotion actions pending for ARNG warrant officers.  Unfortunately, this delay resulted in a loss financially, as well as a delayed DOR in the higher grade, which will further delay future promotions due to minimum time in grade required to meet promotion eligibility.

	e.  for example, he was boarded by an FRB held in the state of Oregon on 21 April 2011 and he was promoted on state promotion orders, dated 17 May 2011.  Upon completion of this action his state officer personnel manager forwarded the appropriate documents to NGB on 4 March 2011 for issuance of Federal recognition orders, finalizing his promotion action with a DOR to be approved by the FRB.  However, this delay pending development of staffing procedures resulted in his DOR being 6 September 2011, as compared to the date on his state promotion orders of 17 May 2011.

	f.  because of the extended administrative delay in developing the process, and the subsequent staffing of his promotion action, which was all beyond his control, he requests his effective date of promotion and DOR be adjusted to 
17 May 2011, the original date the FRB approved his promotion effective date.

3.  He provides:

* Special Orders Number 210 AR, issued by the NBG, dated 7 September 2011
* Orders 111-001, issued by Joint Force Headquarters, Oregon Army National Guard (ORARNG), dated 21 April 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the ORARNG in the rank of CW3.  

2.  Following prior enlisted service in the ORARNG, the applicant was appointed as a Reserve warrant officer one (WO1) on 20 May 2005 in the ORARNG.  He was granted Federal recognition.

3.  He completed the Information Systems Technician – Warrant Officer Basic Course (Reserve Component) on 28 March 2007.

4.  Orders 144-059, issued by Joint Force Headquarters, ORARNG, dated        24 May 2007, promoted the applicant to chief warrant officer two (CW2) with an effective date and DOR of 17 May 2007.  He was granted Federal recognition.

5.  He completed the Signal Systems Support Technician WO Advanced Course on 10 August 2010.

6.  On 21 April 2011, an FRB determined the applicant was qualified for Federal recognition in the rank of CW3.  The NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)) is not available for review.

7.  Orders 111-001, dated 21 April 2011, show he was promoted to CW3 with an effective date and DOR of 17 May 2011.

8.  Special Orders Number 210 AR, dated 7 September 2011, extended the applicant Federal recognition for the purpose of promotion to CW3 with an effective date of 6 September 2011.

9.  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 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 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.

10.  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.


	a.  Title 10, U.S. Code, sections 571b and 12241b, introduce 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.

	b.  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 will be staffed through the Department of the Army (Deputy Chief of Staff, G-1) to the Secretary of Defense.  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 17 May 2007 and he completed the WO Advanced Course in August 2010.  He met the minimum time-in-grade requirements for promotion to CW3 on 17 May 2011.  Based on the applicant's statements, he was favorably considered by an FRB on 21 April 2011.  He was also issued a State order promoting him to CW3 effective 17 May 2011.  The NGB issued him Federal recognition orders for promotion to CW3 effective 6 September 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 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 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)                                         AR20110025212



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ABCMR Record of Proceedings (cont)                                         AR20110025212



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