IN THE CASE OF:	  

		BOARD DATE:  23 August 2012

		DOCKET NUMBER:  AR20120003656 


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 a change of his date of rank (DOR) to chief warrant officer four (CW4) from 2 December 2011 to 20 May 2011.

2.  The applicant states his promotion packet was at the National Guard Bureau (NGB) more than 7 months and it remained at the point of entry more than 
3 months.  He states that achieving the rank of chief warrant officer five (CW5) is a huge undertaking and hard to reach.  He has an opportunity but his current DOR has caused him to be thrown into a larger pool of CW4s.  

3.  The applicant states that prior to enactment of the National Defense Authorization Act (NDAA) of 2011, all Army National Guard (ARNG) warrant officers (WO) were promoted by the Chief, NGB and the Secretary of the Army.  With the signing of the NDAA 2011 into law, promotions were elevated from the Secretary of the Service to the President of the United States and it appears that no one was aware of the significant impact the change would have on the promotion process for ARNG WO's, as a result, no procedures had been established to process promotion actions above the NGB level.  This change resulted in promotion actions being delayed several months pending the establishment of staffing procedures above NGB level. The delay also resulted in a financial loss as well as delays in future promotions due to minimum time in grade requirements.



4.  The applicant provides an NGB Form 89 (Proceedings of a Federal Recognition Examining Board); NGB Special Orders Number 320 AR, dated 
13 December 2011; a Recommendation for Promotion, dated 11 April 2011; and NGB and State promotion orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Arkansas Army National Guard (ARARNG) in the rank of CW4.

2.  On 14 April 2011, a Federal Recognition Board was held by the ARARNG to determine if the applicant was qualified to be awarded Federal recognition as CW4.  The proceedings indicate he was found satisfactory in his physical qualifications, moral character, and general qualifications.

3.  On 26 April 2011, the ARARNG published Orders Number 116-846 promoting him to CW4 effective 14 April 2011.

4.  NGB Special Orders Number 320 AR, dated 13 December 2011, extended the applicant Federal recognition for promotion to CW4 effective 2 December 2011.

5.  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/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.

6.  National Guard Regulation 600-101 (WO's - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO 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 as determined by a Federal Recognition Board.

7.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's in the ARNG, dated 14 June 2011, states that ARNG WO's 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 introduced 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 ARARNG published orders promoting the applicant to CW4, effective 14 April 2011.  

2.  The NGB issued him Federal recognition orders promoting him to CW4, effective 2 December 2011.

3.  As a result of the 2011 NDAA, the promotion of WOs is now issued by the President of the United States and is delegated to the Secretary of Defense.  The delay in his promotion resulted from a statutory change in the procedures for promoting WOs that was mandated by the 2011 NDAA that required WOs to 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.

4.  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 resulted in the delay of the promotions of all ARNG WOs and probably WOs from other components that were recommended for promotion during the months immediately following the enactment of the scrolling requirements.

5.  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.
6.  In view of the foregoing evidence and the change in the law, the applicant's effective date of promotion seems appropriate and reasonable; therefore, it 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)                                         AR20120003656



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ABCMR Record of Proceedings (cont)                                         AR20120003656



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