IN THE CASE OF:	  

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120000547 


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, in effect, an adjustment of his Federal Recognition order for promotion to chief warrant officer two (CW2) from 28 October 2011 to                5 June 2011. 
 
2.  The applicant states, in effect, he was unfairly penalized by the National Guard Bureau (NGB) who delayed his promotion to CW2 while they were interpreting the new law and the process for federal recognition.    

3.  The applicant provides:

* Orders 121-004, dated 1 May 2011
* Orders 179-021, dated 28 June 2011
* Orders 286-132, dated 13 October 2011
* Special Orders Number 276 AR, dated 31 October 2011
* Memorandum, dated 31 October 2011

CONSIDERATION OF EVIDENCE:

1.  On 25 June 2009, the NGB published Special Orders Number 156 AR extending the applicant Federal recognition for his initial appointment as a warrant officer (WO) in the Army National Guard (ARNG), effective 5 June 2009.

2.  On 1 May 2011, the Maine Army National Guard (MEARNG) published Orders 121-004 promoting him to CW2, effective 5 June 2011.  The order states "until Federal Recognition is received individual will not be paid as CW2."
3.  On 31 October 2011, NGB Special Orders Number 276 AR were published extending Federal recognition to the applicant for promotion to CW2, effective 28 October 2011.

4.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who recommended disapproval of the applicant's request because his promotion action was submitted after the effective date of the below referenced guidance.  

5.  On 10 October 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He provided no response.

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 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 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.

8.  A WO must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, 2 years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

9.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's 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 met the eligibility criteria for promotion to CW2 on 5 June 2011.  Since his DOR as a WO1 was 5 June 2009 and since he needed 2 years time in grade for promotion to CW2, he should have been promoted on 5 June 2011.

2.  However, 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)                                         AR20120000547



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ABCMR Record of Proceedings (cont)                                         AR20120000547



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