IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001293 


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, the effective date of promotion and date of rank to chief warrant officer two (CW2) in the Army National Guard (ARNG) be adjusted from 2 December 2011 to 1 October 2010. 

2.  The applicant states he was told by the Warrant Officer recruiter he would be promoted to chief warrant officer two (CW2) when he finished the Warrant Officer Basic Course (WOBC) and submitted his promotion packet.  He completed WOBC on 1 October 2010 and submitted his packet on 4 October 2010.  He did not get promoted to CW2 until 2 December 2011, 14 months later.  His unit, the 1148th Transportation Company, submitted his packet to the higher headquarters, the 265th Group, in December 2010, which was two months late.  According to a captain who worked at the 265th Group, the packet got kicked back from the state in January 2011 for not being complete.  He submitted all the documents required of him and his unit and higher headquarters failed to get his promotion packet submitted in time.

3.  The applicant provides:

* Orders Number 317-029, dated 13 November 2006
* Memorandum, dated 14 August 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Oath of Office, dated 25 May 2010
* Special Orders (SOs) Number 160 AR, dated 27 July 2010
* Orders Number 252-131, dated 9 September 2010
* DA Form 1059 (Service School Academic Evaluation), dated 1 October 2010
* Orders Number 144-726, dated 24 May 2011
* SOs Number 319 AR, dated 13 December 2011
* Various email traffic

CONSIDERATION OF EVIDENCE:

1.  The applicant provided Orders Number 317-029, issued by the State of Georgia, on 13 November 2006.  These orders promoted him from staff sergeant/E-6 to sergeant first class (SFC)/E-7 with an effective date of rank of 30 September 2006.

2.  After having had prior enlisted service, the applicant graduated from the Warrant Officer Candidate School (WOCS) on 25 May 2010, was extended Federal recognition effective that same day, and was appointed as a Reserve warrant officer (WO) in the Georgia Army National Guard (GAARNG) that day.  He attended and successfully completed the Unit Maintenance WOBC and he was awarded specialty 915A (Automotive Maintenance Warrant Officer).

3.  A memorandum, dated 14 August 2007, Subject:  Policy to Appoint SFC to CW2 (NGB-ARH Policy Memo #07-026), states an SFC who has served a minimum of two consecutive years as an E7 may be appointed to CW2 in one of two ways and further states an SFC (E7) who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.

4.  His record contains a DA Form 1059 which shows he graduated from WOBC on 1 October 2010.  This form also shows that he failed to meet the Army Physical Fitness Test (APFT) standards.

5.  On 6 January 2011, NGB published SOs Number 4 AR extending him Federal recognition for his appointment to WO1 effective 1 October 2010.

6.  On 24 May 2011, the GAARNG published Orders 062-001 promoting him to CW2 effective 23 March 2011.

7.  On 13 December 2011, NGB published SOs Number 319 AR extending him Federal recognition for his promotion to CW2 effective 2 December 2011.

8.  He provided email traffic spanning the period of 21 December 2011 to 
4 January 2012 wherein he corresponded with a captain (CPT) from his higher headquarters in reference to his promotion to CW2.  In this e-mail:

	a.  he stated, in accordance with NGB-ARH Policy Memo #07-026, he was eligible for promotion to CW2 when he completed WOBC on 1 October 2010; however, his date of promotion for CW2 was 2 December 2011.  He further stated he submitted his promotion packet on 4 October 2010.

	b.  his higher headquarters informed him his promotion to CW2 would not be backdated based on his completion of WOBC, his promotion date would be based on the date his promotion packet was submitted.  Further, his packet did not get submitted until January 2011 and was then sent back for corrections.  Additionally, once the state sent a promotion packet to the NGB it is out of the state’s purview.

	c.  his higher headquarters further stated his promotion packet was received by them on 1 December 2010 and was given to the S1 on 2 December 2010 and the S1 submitted it to the NGB in December.  However, the NGB returned the packet to the S1 in January 2011 for corrections.

9.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states Soldiers who fail to pass the APFT or fail to take the APFT within the required period will be flagged.  The flag is removed on the day the Soldier passes the APFT or at expiration term of service (ETS)/expiration of service agreement (ESA)/mandatory release date (MRD).  A flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states an officer’s promotion is automatically delayed when the officer is documented as overweight as defined in Army Regulation 600-9 or has failed the APFT most recently administered.

11.  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.

12.  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 an FRB.

13.  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 applicant contends that he should have been promoted to CW2 effective 1 October 2010, but was not promoted to CW2 until 2 December 2011 because his unit and higher headquarters did not submit his promotion packet in a timely fashion. 

2.  According to his DA Form 1059, he graduated from WOBC on 1 October 2010 but failed to meet APFT standards.  His failure to meet APFT standards would have resulted in a FLAG, thereby delaying his promotion action until the removal of the FLAG, which would not have occurred until the date he met the APFT standards.  

3.  As stated by his higher headquarters, his S1 received his promotion packet on 2 December 2010 and subsequently submitted it to the NGB.  However, the NGB returned the promotion packet to the S1 in January 2011 for corrections.

4.  Once his promotion packet/appointment was properly completed, the promotion would have processed.  However, by then, and as a result of the 2011 National Defense Authorization Act (NDAA), the promotion to CW2 was now being issued by the President of the United States and is delegated to the Secretary of Defense.  



	a.  The further delays 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.  It appears 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.

5.  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)                                         AR20120001293



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ABCMR Record of Proceedings (cont)                                         AR20120001293



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