IN THE CASE OF: 

		BOARD DATE:	       25 October 2012

		DOCKET NUMBER:  AR20120004577 


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 her date of rank (DOR) to chief warrant officer two (CW2) from 2 December 2011 to 31 August 2011 or 4 October 2011.

2.  The applicant states due to administrative errors and lack of a clear process, her promotion packet was delayed for 4 months.  Had the Army G-1 and the National Guard Bureau (NGB) been competent and prepared for the change in the 2011 National Defense Authorization Act (NDAA), her promotion would have been processed in a timely manner, resulting in the original effective date.  The NGB was unable to produce guidance on packet submission until the publication of NGB Policy Memorandum on 14 June 2011.  The change in pay at 13 years of service is $571 a month, so the delay cost her $2,284.

3.  The applicant provides two orders, four memoranda, and NGB Form 89 (Proceedings of a Federal Recognition Examining Board).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show she was appointed as a warrant officer (WO) in the Minnesota Army National Guard (MNARNG) and she executed an oath of office on 26 September 2009.

2.  She attended and successfully completed the Human Resource WO Basic Course (WOBC) from 9 March to 5 May 2010 and she was awarded specialty 420A (Military Personnel Technician).

3.  On 31 August 2011, a Federal Recognition Board (FRB) was held by the MNARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW2.  She met the minimum time-in-grade and education requirements for promotion to CW2, was found to be satisfactory in her physical qualifications and general qualifications and was recommended for promotion.

4.  Orders Number 249-1027, dated 6 September 2011, issued by the MNARNG, promoted her to CW2 with a DOR and effective date of 4 October 2011.  These orders stated the effective date of the promotion would be the date the permanent Federal recognition order was published.

5.  Special Orders Number 320 AR, issued by the NGB, dated 13 December 2011, extended her Federal recognition for the purpose of promotion to CW2 with a DOR and effective date of 2 December 2011.

6.   On 22 August 2012, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request to adjust her DOR to CW2 from 2 December 2011 to 31 August 2011 or 4 October 2011 and opined that:

	a.  The applicant stated her promotion was delayed due to processing her request for Federal recognition as a result of change in the requirement based on the NDAA of 2011.  

	b.  Personnel Policy Operational Message number 11-015, dated 14 June 2011, in pertinent part, stated, that the NDAA of 2011 introduced a requirement that all WO appointments and promotions for CWO grades in the ARNG must be made by the President of the United States effective 7 January 2011.  Requests for appointments will be staffed through the Department of the Army, Assistance Chief of Staff, G-1.  This requirement may add 90 days or more to the process of approval for appointment as a Reserve WO of the Army to be completed.  

	c.  The delay the applicant complained about resulted from the change in procedures for the promotion of WOs that was mandated in the NDAA of 2011 that WO promotions be placed upon a scroll and staffed to the President (delegated to the Secretary of Defense).  The law took effect 7 January 2011.  There followed a period during which the procedures for processing WO appointment and promotion scrolls was developed and refined.  Though this process was modeled on the existing process for scrolling officer appointments and promotions, there was still a period during which the process was being perfected.  The delay in question was not the result of an error or injustice as much as it was the inherent consequence of elevating the appointment and promotion authority for WOs to such a high level.  
	d.  The State concurred with this recommendation.

7.  On 22 August 2012, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

8.  Title 10, U.S. Code (USC), 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.  Section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

9.  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 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 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.

10.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum time in grade for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WO Basic Course, or equivalent certification, within 2 years from date of initial appointment as WO1.

11.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WOs in the ARNG, 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, USC, sections 571b and 12241b, introduces a requirement that all WO appointments and promotions to CWO 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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO1 in the ARNG on 26 September 2009 and she completed WOBC on 5 May 2010.  She met the minimum time-in-grade and education requirements for promotion to CW2 and was recommended for promotion on 31 August 2011.  

2.  She was issued State orders promoting her to CW2 effective 4 October 2011.  NGB issued her Federal recognition orders for promotion to CW2 effective 4 December 2011.

3.  As a result of the 2011 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense.  This change was effective 7 January 2011 and removed NGB authority to approve and publish WO Federal recognition orders.  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.  In addition, the applicable laws directed the effective date of a promotion of a Reserve officer shall be the date on which Federal recognition in that grade is extended.

4.  In view of the foregoing, the applicant's effective date of promotion of 4 December 2011 seems appropriate and reasonable and 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)                                         AR20120004577





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ABCMR Record of Proceedings (cont)                                         AR20120004577



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