IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20120005266 


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 change of his date of rank (DOR) to chief warrant officer two (CW2) from 2 December 2011 to 6 September 2011.

2.  He states that administrative errors and lack of a clear process from The Office of the Staff Judge Advocate (OTJAG) and the Army G-1 caused the delay of his promotion packet for three months.  He contends that the scroll process is supposed to run between 60 to 90 days.  Had the Army G-1 and the National Guard Bureau (NGB) been competent and prepared for the change in the National Defense Authorization Act (NDAA), his promotion would have been processed in a timely manner.  He adds that the NGB was unable to produce guidance on packet submission until 14 June 2011.  

3.  He provides:

* Orders 249-1028, issued by Joint Forces Headquarters – Minnesota, Office of the Adjutant General, dated 6 September 2011
* Special Orders Number 320 AR, issued by the NGB, dated 13 December 2011
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 31 August 2011
* NGB memoranda and Information Paper

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Minnesota Army National Guard (MNARNG) in the rank of CW2.

2.  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 CW2.  The proceedings indicate he was found satisfactory in his physical qualifications, moral character, and general qualifications.

3.  On 6 September 2011, the MNARNG published Orders Number 249-1028 promoting him to CW2 effective 4 October 2011.

4.  NGB Special Orders Number 320 AR, dated 13 December 2011, extended him Federal recognition for promotion to CW2 effective 2 December 2011.

5.  Title 10, U.S. Code, section 1211 (Officers: ARNG of the U.S.) 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 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officers (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 MNARNG promoted him to CW2 with an effective date 4 October 2011.  

2.  Evidence also shows the NGB issued him Federal recognition orders promoting him to CW2, 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, his 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)                                         AR20120005266



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ABCMR Record of Proceedings (cont)                                         AR20120005266



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