IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120001878 


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 correction of her date of rank (DOR) to chief warrant officer two (CW2) from 19 September 2011 to 29 April 2011.

2.  The applicant states she became eligible for promotion to CW2 upon completion of the warrant officer (WO) basic course (WOBC) on 17 December 2010.  After she graduated from WOBC, her unit initiated a request for promotion.  She was promoted to CW2 by State orders on 29 April 2011.  However, the 5 months it took to go through Federal channels for the official promotion to occur on 19 September 2011 was excessive.  Her concern is not about back pay but for her career path in the future.  She must complete 2 years time in grade before promotion to CW3.  The 5 month delay has negatively impacted her career progression.  She is a career Soldier with 23 years of military service to include active duty and deployments to Iraq.

3.  The applicant provides a memorandum, two orders, and six pages of email.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Marine Corps and in the Virginia Army National Guard (VAARNG) the applicant was appointed as a WO1 in military occupational specialty 251A (Information Systems Technician) and executed an oath of office on 2 August 2008.

2.  She attended and successfully completed the Information Systems Technician WOBC from 23 February 2009 to 17 December 2010 at Fort Gordon, GA. 

3.  On 21 January 2011, having met all the regulatory requirements, she was recommended for promotion to CW2 by her immediate commander.

4.  On 29 April 2011, the VAARNG published Orders Number 119-008 promoting her to CW2 with a DOR and effective date of 28 April 2011.  

5.  On 19 September 2011, National Guard Bureau (NGB) published Special Orders Number 226 AR extending her Federal recognition for promotion to CW2 with a DOR and effective date of 13 September 2011.

6.  On 29 June 2012, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request to adjust her DOR to CW2 from 13 September 2011 to 29 April 2011 and opined that:

	a.  The applicant stated her promotion was delayed due to processing her request for Federal recognition as a result of change in the requirement based on the National Defense Authorization Act (NDAA) of 2011.  

	b.  Personnel Policy Operational Message number 11-015, dated 14 June 2011, in pertinent part, stated that the NDAA of 2011 introduced a requirement that mandated all WO appointments and promotions for CWO grades in the ARNG must be made by the President of the United States effective 7 January 2011.  Requests for appointments will be staffed through the Department of the Army, Assistance Chief of Staff, G-1.  This requirement may add 90 days or more to the process of approval for appointment as a Reserve WO of the Army to be completed.  

	c.  The delay the applicant complained about resulted from the change in procedures for the promotion of WOs that was mandated in the NDAA of 2011.  The law took effect 7 January 2011 and there followed a period during which the procedures for processing WO appointment and promotion scrolls was developed and refined.  The delay in question was not the result of an error or injustice as much as it was the inherent consequence of elevating the appointment and promotion authority for WOs to such a high level.  

7.  On 5 July 2012, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.
8.  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.  Section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

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.

10.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum time in grade for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WO Basic Course, or equivalent certification, within 2 years from date of initial appointment as WO1.

11.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, 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, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's and promotion to higher grades by warrant or commission will be issued by the President (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army, Deputy Chief of Staff, G-1


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO1 in the ARNG on 2 August 2008 and she completed WOBC on 17 December 2010.  She met the minimum time-in-grade and education requirements for promotion to CW2 and was recommended for promotion on 21 January 2011.  

2.  She was issued State orders promoting her to CW2 effective 28 April 2011.  NGB issued her Federal recognition orders for promotion to CW2 effective 13 September 2011.

3.  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.  This change was effective 7 January 2011 and removed NGB authority to approve and publish WO Federal recognition orders.  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.  In addition, the applicable laws directed the effective date of a promotion of a Reserve officer shall be the date on which Federal recognition in that grade is extended.

4.  In view of the foregoing, the applicant's effective date of promotion of 13 September 2011 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)                                         AR20120001878





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ABCMR Record of Proceedings (cont)                                         AR20120001878



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