BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120003842 


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 his promotion eligibility date (PED) to chief warrant officer four (CW4) be adjusted to 25 October 2010, the date his command recommended him for promotion to CW4.  

2.  The applicant states, in effect, he was unfairly penalized by the National Guard Bureau (NGB) who delayed his promotion to CW4 while they were interpreting the new law and the process for federal recognition.  The correction of his PED will allow him to be realigned with his peers and continue to be competitive with the warrant officer corps signal community. 

3.  The applicant provides:

* self-authored statement
* DA Form 1059 (Service School Academic Evaluation Report)
* Special Orders Number 281 AR
* Orders 047-014
* NGB 89 (Proceedings of a Federal Recognition Examining Board)
* 3 Memoranda
* 5 DA Forms 67-9 (Officer Evaluation Report)
* Special Orders Number 188 AR





CONSIDERATION OF EVIDENCE:

1.  On 16 February 2011, the Alaska Army National Guard (AKARNG) published Orders 047-014 promoting him to CW4, effective 13 February 2011.  The order states "Individual will not be paid nor [sic] wear the rank insignia of CW4 until Federal Recognition has been extended by Ch, NGB and special orders received."

2.  On 16 August 2011, NGB Special Orders Number 188 AR was published extending Federal recognition to the applicant for promotion to CW4, effective 11 August 2011.

3.  During the processing of this case an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB, who recommended disapproval of the applicant's request because his promotion action was submitted after the effective date of the below referenced guidance.  

4.  On 21 November 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  

5.  On 11 December 2012, he responded to the advisory opinion.  The applicant stated that he disagreed with the advisory opinion and claimed the egregious delay of his promotion was an injustice which should not disadvantage him in competing with his peers who were promoted prior to the implementation of the scroll process for WO promotions which increased the processing times from    30 days to 6 months or more.  He further requested the Board reject the advisory opinion and correct "this systemic injustice."

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 applicant's request to adjust his PED to CW4 to 25 October 2010, the date his command recommended him for promotion to CW4, has been carefully examined and found to lack merit.

2.  He was issued a State order promoting him to CW4, effective 13 February 2011; however, the NGB issued him Federal recognition orders for his promotion him to CW4, effective 11 August 2011.

3.  As a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a CW3 to CW4 is now made 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.

4.  In view of the foregoing evidence and the change in law, there is no basis to adjust the applicant's PED.  Under the circumstances, the applicant's effective date of promotion is 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)                                         AR20120003842



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ABCMR Record of Proceedings (cont)                                         AR20120003842



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