IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120002793 


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 adjustment of the effective date of promotion to chief warrant officer two (CW2) in the Missouri Army National Guard (MOARNG) from 3 October 2011 to 20 September 2010. 

2.  The applicant states he met the time in grade and time in service requirements and he accomplished all academic requirements before the original date he was supposed to get promoted.  He was initially appointed in the ARNG on 20 September 2008 which made him fully eligible for promotion to CW2 on 20 September 2010.  Due to no fault of his, his promotion was delayed. 

3.  The applicant provides the following documents:

* National Guard Bureau (NGB) Federal Recognition Special Orders Number 280 AR, dated 3 November 2008
* DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a Reserve warrant officer of the Army and the MOARNG and executed an oath of office on 20 September 2008.

2.  He successfully attended and completed the Automotive Maintenance Warrant Officer Basic Course (WOBC) at the Aberdeen Proving Ground, MD, from 9 to 20 March 2009.  
3.  On 29 June 2011, a Federal Recognition Board was held by the MOARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW2.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB also recommended he be granted Federal recognition.   

4.  On 29 June 2011, the MOARNG published Orders Number 180-045 promoting him to CW2 effective 22 June 2011.  

5.  On 20 October 2011, NGB published Special Orders Number 260 AR extending the applicant Federal recognition for promotion to CW2 with an effective date and date of rank as 3 October 2011.

6.  An advisory opinion was obtained on 20 November 2012 in the processing of this case.  An NGB official recommended approval and stated that the applicant met the educational and time in grade requirements; however, due to delays that snowballed into more delays, he was ultimately denied promotion for almost a year.  He was eligible for promotion prior to the implementation of the Federal Recognition Board for warrant officers.  This ended up being one of the delays he faced.  He should be entitled to promotion effective 20 September 2010 with entitlement to back pay and allowances.  The official added:

	a.  Personnel Policy Message Number 11-015, dated 14 June 2011 states in paragraph 2(b), "….introduce the requirement that all warrant officer appointments and promotions to chief warrant officer grades in the ARNG be made by the President of the United States."  

	b.  The same memorandum states in paragraph 5(a), "….effective 7 January 2011, all initial appointments of warrant officers and appointments in a higher grade (promotions), by warrant or commission, will be issued by the President of the United States.  Requests for appointments will be staffed through the Department of the Army, Assistant Chief of Staff, G-1.  This requirement may add 90 days or more to the process of approval for appointment as a Reserve warrant officer of the Army to be completed."

	c.  An informal investigation of the matter by the MOARNG indicates the applicant's first submission of his promotion packet missed the September 2010 Federal recognition so the October board was the first available possibility.  The state then claims the applicant's Periodic Health Assessment (PHA) a qualifier for promotion, expired in October which would result in another unexpected delay.  Ultimately, the MOARNG claims the applicant's packet was not updated and received until 13 June 2011.  The state FRB met on 29 June 2011 and ultimately his packet was forwarded to the NGB on 19 July 2011.  
	d.  The delays could have been avoided if the promotion packet was handled properly at the unit level especially considering the promotion packet could have been submitted in advance of the date the applicant was eligible for promotion.  If this had been done, the delays related to missing the state FRB in September, an outdated PHA, and the delays associated with the new Federal Recognition process for warrant officers could have been avoided.  

	e.  The applicant met all the requirements for promotion in September 2010 and to delay his promotion for nearly a year is not in the best interests of the applicant or the ARNG.  

	f.  The State does not concur with this recommendation.  In an email, dated 2 October 2010, a state official stated that although the applicant had completed all requirements for promotion prior to 20 September 2010, he is not automatically given a promotion at this timeline.  His packet would not have made it to the officer branch on time for the September 2010 board.  This meant he would have been boarded in October 2010.  His PHA expired in October 2010 which would have stopped him from meeting the cutoff for the October board.  His promotion packet was received by the officer branch on 13 June 2011.  The FRB was held on 29 June 2011.  His packet was forwarded on 19 July 2011 and he received Federal recognition on 20 October 2011.   

7.  The applicant was provided with a copy of this advisory opinion but he did not respond.  

8.  According to the official Army G-1 website, with units regularly deploying and mobilizing, the ARNG has an increased need to monitor and track Soldiers’ medical readiness, with a special emphasis on preventive measures.  In order to improve individual medical readiness (IMR) rates, the Army implemented the PHA program, which requires an annual physical exam that replaces the five-year retention physical.  The PHA consists of two parts: Part one is a self-assessment completed by the Soldier; Part two is the provider assessment, which is entered into MEDPROS as the Soldier’s updated PULHES.  The PHA is considered current if it has been less than 15 months since the last PHA.  PHA results consist of the health assessment, height, weight, PULHES, and potential for deployability within six months.  These items will be entered into MEDPROS at the point of service.

9.  National Guard Regulation 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 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.

10.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, two 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.

11.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers 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 warrant officer 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 (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army, 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 was appointed as a WO in the ARNG on 20 September 2008.  He met the eligibility for promotion to CW2 on 20 September 2010 in that he met the 2-year time in grade requirements and had completed the WOBC. 

2.  For unknown reasons, his promotion packet missed the September 2010 FRB at the state level.  This means the month of October 2010 was the earliest a state FRB could consider him.  But by then, his PHA had expired.  The PHA is a qualifier for promotion.  In other words, since his PHA had expired, he was not fully eligible for promotion.  It appears he was not considered by a state FRB until June 2011, after he had completed a PHA.

3.  The state FRB considered his record on 29 June 2011 and found him qualified at that time.  His packet moved forward to the NGB for Federal recognition on 19 July 2011.  The NGB's normal and reasonable processing time for Federal recognition is 90 to 120 days.  Accordingly and within this reasonable time frame, the applicant was extended Federal recognition on 3 October 2011.  

4.  Notwithstanding the favorable advisory opinion by the NGB, commanders on the ground are in the best position to assess and determine a Soldier's eligibility for promotion.  Here, the applicant was not fully qualified for promotion on 20 September 2010 as he contends.  As such, there is insufficient evidence to grant him relief.

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)                                         AR20120002793





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ABCMR Record of Proceedings (cont)                                         AR20120002793



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