IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20120001493 


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 10 November 2011 to 5 June 2011.
 
2.  The applicant states, in effect, that he appeared before a Federal Recognition Board (FRB), on 21 May 2011, and he was approved for promotion to the next higher grade.  He goes on to state that the Kansas Army National Guard (KSARNG) published orders, dated 30 August 2011, promoting him to the rank of CW2.  However, in January 2011 the National Defense Authorization Action (NDAA) changed the warrant officer (WO) promotion protocol causing a backlog and his Federal recognition was delayed until 10 November 2011, which is the date the Secretary of Defense signed his promotion scroll.  Accordingly, he desires to have his date of rank (DOR) adjusted to reflect that he was promoted to the rank of CW2 on 5 June 2011 for future promotion eligibility purposes.  He also states the change was not anticipated and seriously impacted the timely promotion of many warrant officers.  He was informed that each officer would have to submit their own appeals.

3.  The applicant provides a two-page letter explaining his application, copies of his Federal Recognition Orders, KSARNG promotion orders, his oath of office as a warrant officer one (WO1), National Guard Bureau (NGB) memoranda regarding the Federal Recognition of Warrant Officers in the Army National Guard, an NGB information paper, and National Guard Regulation 600-101.


CONSIDERATION OF EVIDENCE:

1.  On 12 June 2002, the applicant enlisted in the KSARNG and served until he was honorably discharged on 19 August 2004, in the pay grade of E-6, to accept a commission. 

2.  He was commissioned as a second lieutenant in the KSARNG, on 20 August 2004, as an aviation branch officer.  He was promoted to the rank of first lieutenant on 20 August 2006.

3.  On 5 June 2009, the applicant accepted an appointment as an aviation WO1 in the KSARNG.

4.  On 24 June 2011, the KSARNG published Orders 175-713 promoting the applicant to CW2 with an effective date and DOR of 30 August 2011. 

5.  On 14 November 2011, the NGB published Special Orders Number 297 AR extending him Federal recognition for promotion to CW2 effective 10 November 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.  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.  
9.  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 must 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 determined by the KSARNG to be 30 August 2011.  The NGB issued him Federal recognition orders promoting him to CW2, effective 10 November 2011, despite having met promotion qualifications on 21 May 2011. 

2.  However, as a result of the 2011 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _______   ___
               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)                                         AR20120001493



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ABCMR Record of Proceedings (cont)                                         AR20120001493



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