IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20120004562 


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 his Federal recognition order, for promotion to chief warrant officer two (CW2), from 15 December 2011 to the date of rank (DOR) shown on Joint Force Headquarters – Minnesota (MN), Orders 249-1026, dated 6 September 2011. 

2.  He states that administrative errors and lack of a clear process from the Office of The Judge Advocate General (OTJAG) and Army G-1 delayed his promotion packet for 4 months.  The scroll process was supposed to run between 60 to 90 days.  If the Army G-1 and the National Guard Bureau (NGB) had been competent and prepared for the change in the 2011 National Defense Authorization Act (NDAA), his promotion would have been processed in a timely manner and he would have been promoted on the original effective date. 

3.  He contends that the NGB was unable to produce guidance on the submission of promotion packets until the publication of NGB Policy Memorandum Number 11-015, subject:  Federal Recognition of Warrant Officer Appointments in the Army National Guard (ARNG). 

4.  He also states the difference in pay from the grade of warrant officer (WO1)/W-1 to CW2/W-2 with 15 years of service is $453.00 per month, which is a loss of $1,811.00 in his case. 

5.  The applicant provides:

* MNARNG State promotion orders
* Federal Recognition orders
* An information paper
* An NGB policy letter

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed as a Reserve WO1 in the MNARNG and executed an oath of office on 11 September 2009.  He is currently serving as a drilling member in the MNARNG in the grade of CW2/W-2.

2.  He completed the Mobility Officer Warrant Officer Basic Course (WOBC) on 16 April 2010 and was awarded military occupational specialty (MOS) 882A (Mobility Officer) the same day.

3.  On 31 August 2011, a Federal recognition board was held by the MNARNG to determine if he was qualified to be awarded Federal recognition as a CW2.  The proceedings show the board found him physically, morally, generally and professionally qualified for Federal recognition as a CW2.

4.  He provided a copy of Joint Force Headquarters, MNARNG Orders 249-1026, dated 6 September 2011, which promoted him to CW2 with an effective date and date of rank of 11 September 2011.  This order also contains the following statement:

"Individual will not sign official correspondence, will not wear insignia of new rank and will not be paid at the higher grade until Federal recognition is confirmed.  Effective date of the promotion will be the date the permanent Federal recognition order is published."

5.  Special Orders Number 335 AR, NGB, dated 20 December 2011, extended him Federal recognition for his promotion to CW2 effective 15 December 2011.

6.  He provided a copy of NGB Policy Memorandum 11-015, subject: Federal Recognition of Warrant Officers in the ARNG, dated 14 June 2011.  This policy states that ARNG warrant officer are initially appointed and 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 571(b) and 12241(b) introduced a 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 (POTUS).  As a result, effective 7 January 2011, all initial appointments of warrant officers 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.

7.  The applicant also provided an Information Paper, subject:  NDAA 11 Changes to Warrant Officer Federal recognition Process, dated 22 July 2011 which states:

   a.  Previous to 7 January 2011, all warrant officer Federal recognition appointments and promotions were approved by the Secretary of the Army.  The Secretary of the Army delegated this authority to the Director, NGB, and NGB published all Federal recognition orders for warrant officers.

   b.  On 7 January 2011, NDAA 2011 was signed and a new requirement was created that all warrant officer appointments and promotions would have to be signed by the President.  This new requirement removed NGB authority to approve and publish all warrant officer Federal recognition orders.  All warrant officer appointments and promotions are now required to go on a scroll and processed through various channels from the Department of the Army G-1 up to the Secretary of Defense.

   c.  Before NDAA 2011, all ARNG warrant officer promotions effective date of promotion for pay and other purposes was the date of the State promotion orders as stated by the Federal recognition board recommendations.  As a result of the change in approval authority brought about by NDAA 2011 and as with more senior commissioned officers,  all warrant officer Federal recognition promotions will be effective no earlier than the date the Secretary of Defense signs the scroll approving the promotion.  

8.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) states 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) to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a warrant officer must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's date of rank as a WO1 was 
11 September 2009 and he completed WOBC on 16 April 2010.  He met the minimum time-in-grade requirements for promotion to CW2 on 11 September 2011, and he was favorably considered by a Federal Recognition Board that found him physically, morally, generally and professionally qualified for Federal recognition as a CW2.

2.  The NGB issued him Federal recognition orders for promotion to CW2 effective 15 December 2011, despite his having met promotion qualification on 11 September 2011, the DOR shown in his State promotion order. 

3.  As a result of the 2011 NDAA, the promotion of a WO1 to CW2 is now approved by the President and is further 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 warrant officer 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 warrant scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG warrant officers, and probably warrant officers from other components, who were 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 warrant officer 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 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)                                         AR20120004562





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ABCMR Record of Proceedings (cont)                                         AR20120004562



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