IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120001958 


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 three (CW3) from 12 August 2011 to                21 February 2011. 

2.  The applicant states, in effect, he was unfairly penalized by the National Guard Bureau (NGB) who delayed his promotion to CW3 while they were interpreting the new law and the process for federal recognition.   

3.  The applicant provides:

* a self-authored statement
* Orders 052-817, dated 21 February 2007
* Special Orders Number 43 AR, dated 23 February 2007
* Memorandum for Record, dated 16 February 2011
* Orders 048-834, dated 17 February 2011
* Memorandum, dated 14 June 2011
* Special Orders Number 189 AR, dated 16 August 2011
* Page of references
* 5 pages of email correspondence

CONSIDERATION OF EVIDENCE:

1.  Having achieved the rank of colonel in the South Carolina Army National Guard (SCARNG), the applicant was later appointed as a Reserve warrant officer (WO) on 30 May 2006, and he executed the Oaths of Office in the SCARNG on  1 June 2006.  He attended and successfully completed the WO Basic Course (WOBC), on 16 February 2007, and he was awarded military occupational specialty 915A (Unit Maintenance Officer).  

2.  He was promoted to chief warrant officer two (CW2) on 21 February 2007.   He was extended Federal recognition in the rank of CW2, effective 21 February 2007.  

3.  He attended and successfully completed the Military Personnel Technician WOBC from 4 May through 2 July 2009 and later completed the WO Advanced Course (WOAC) on 20 August 2010.

4.  On 17 February 2011, the SCARNG published Orders 048-834 promoting him to CW3, effective 21 February 2011.  The order states "the effective date of promotion in the Reserve of the Army and corresponding date of rank will be the date the Chief, NGB, extends Federal recognition of State promotion."

5.  On 16 August 2011, NGB Special Orders Number 189 AR was published extending Federal recognition to the applicant for promotion to CW3, effective 12 August 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 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 (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.  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's DOR as a CW2 was 21 February 2007 and he completed WOAC on 20 August 2010.  He was issued a State order promoting him to CW3, effective 21 February 2011; however, the NGB issued him Federal recognition orders promoting him to CW3, effective 12 August 2011.

2.  As a result of the 2011 National Defense Authorization Act (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 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)                                         AR20120001958



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ABCMR Record of Proceedings (cont)                                         AR20120001958



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