IN THE CASE OF:	  

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20120003793 


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 his date of rank (DOR) for chief warrant officer two (CW2) from 15 December 2011 to 29 May 2011.

2.  He states that due to a change in policy a backlog was created in promoting Army National Guard (ARNG) warrant officers (WOs).  All paperwork was submitted and eligibility requirements were met prior to his eligibility date.

3.  He provides:

* a memorandum issued by the National Guard Bureau (NGB), subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 20 December 2011
* Orders 214-700, issued by the Land Component, Joint Force Headquarters Kansas, dated 2 August 2011
* NGB Special Orders Number 335 AR, dated 20 December 2011
* a memorandum issued by the NGB, subject:  Exception to Policy for Promotion to CW2 – [the applicant], dated 22 July 2011
* e-mails pertaining to his promotion

CONSIDERATION OF EVIDENCE:

1.  Following enlisted service in the ARNG, the applicant was appointed as a WO1 in the ARNG, effective 29 May 2009, and extended temporary Federal recognition.  He is currently serving as a CW2 in the ARNG.


2.  In a memorandum from the Acting Chief, Personnel Policy Division, NGB, the Joint Force Headquarters Kansas was informed that their request for an exception to policy to promote the applicant to CW2 in a rear detachment slot while mobilized was approved.  The memorandum stated the applicant's DOR would be no earlier than the date of the memorandum.

3.  Orders 214-700, dated 2 August 2011, promoted the applicant to CW2 effective and with a date of rank of 22 July 2011.  These orders stated he would not be paid or authorized to wear the insignia of grade to which promoted until Federal recognition was confirmed.

4.  NGB Special Orders 335 AR, dated 20 December 2011, announced the extension of Federal recognition to the applicant effective 15 December 2011 for the purpose of promotion to CW2.

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 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 - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states 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 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.

7.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WOs 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.

8.  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 shows that as the result of an exception to policy approved by NGB, the applicant was promoted to CW2 effective 22 July 2011.  The exception to policy clearly stated his DOR would be no earlier than the date of the memorandum, and the promoting authority complied with that requirement.

2.  The NGB issued Federal recognition orders for the applicant's promotion to CW2 effective 15 December 2011 despite him having been promoted effective 22 July 2011.

3.  However, as a result of the 2011 NDAA, promotion 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 resulted 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.


4.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion is appropriate 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)                                         AR20120003793



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ABCMR Record of Proceedings (cont)                                         AR20120003793



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