IN THE CASE OF:	  

		BOARD DATE:  11 October 2012

		DOCKET NUMBER:  AR20120005538 


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 date of rank (DOR) to chief warrant officer two (CW2) be changed from 6 March 2012 to 26 September 2011. 
 
2.  He states he completed all the required training and met or exceeded his duty standards.  He adds he was approved for a promotion waiver to CW2 on 
18 October 2011.  He states his Federal recognition was approved on 6 March 2012.  He cites the following reasons why he believes the delay in his promotion to be unjust:

* He performed all duties at or above standard
* It adversely affects his ability to pursue further development in the Warrant Officer Advanced Course 
* It hinders his ability to advance if the school registration and acceptance is at the end of his contract

3.  He provides the following:

* Memorandum, Subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 6 March 2012
* Memorandum, Subject:  Exception to Policy for Promotion to CW2- Warrant Officer One (WO1) (the applicant's name), dated 18 October 2011
* Special Orders Number 76 AR, dated 6 March 2012
* Orders 022-1015, dated 22 January 2012
* DA Form 71 (Oath of Office), dated 15 Sep 2011
* Officer Evaluation Report
* DA Form 1059 (Service School Academic Evaluation Report)
* Webster University Transcript

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the Texas Army National Guard (TXARNG) as a WO1 on 26 September 2009.   

2.  His DD Form 214 (Certificate of Release from Active Duty) shows he was ordered to active duty on 21 November 2010 in support of Operation New Dawn. He served in Iraq from 6 March to 9 September 2011 and he was honorably released from active duty on 28 October 2011.

3.  A memorandum, published by the Chief, Personnel Division, National Guard Bureau (NGB), dated 6 March 2012, shows he was promoted to CW2 with a DOR of 5 March 2012.

4.  NGB Special Orders 76 AR, dated 6 March 2012, extended him Federal recognition in the rank of CW2, effective 5 March 2012.

5.  In a memorandum to the Joint Forces, Headquarters of Texas, from the NGB, dated 18 October 2011, the Chief, Personnel Policy Division, granted an exception to policy to promote the applicant to CW2.  The memorandum stated the applicant's DOR would be no earlier than the date of the memorandum.  Additionally, this official stated that "the Targeting Officer (131A0) position in unit identification code:  X4HAA, Paragraph:  111, Line: 05, Authorize Grade:  CW3, must remain vacant while the applicant is in a mobilized status." 

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that for promotion to CW2, a warrant officer must complete two years minimum service in the lower grade, Warrant Officer Basic Course, and receive Federal recognition in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

7.  Title 10, U.S. Code, section 1211 (Officers:  ARNG of the United States) provides that 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 the individual’s appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.

8.  National Guard Regulation 600-101 (WO - 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 as determined by a Federal Recognition Board.

9.  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.

	a.  Title 10, U.S. Code, sections 571b and 12241b, introduce a requirement that all WO appointments and promotions to chief warrant officer grades in the ARNG be made by the President of the United States.

	b.  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 will be staffed through the Department of the Army (Deputy Chief of Staff, G-1) to the Secretary of Defense.  This requirement may add
90 days or more to the process for approval for appointments or promotions to be completed.

10.  Memoranda, dated 17 December 2003 and the 14 January 2005, by the former Assistant Secretary of the Army (Manpower and Reserve Affairs (M&RA)) apply to USAR officers and ARNG officers who are ordered to active duty for 90 days or more.  The memoranda states that officers eligible for promotion based on a future vacancy:  

   a.  May be promoted if they can be assigned to the higher graded position within 180 days after completing their current tour of active duty.

   b.  If promoted officers are unwilling or unable to serve in the higher graded position after completing the tour of active duty, then they are transferred to the Individual Ready Reserve.

   c.  Officers in this category must coordinate with their respective states in the case of ARNG officers to determine if they should accept, decline, or delay the promotion based on the future availability of higher graded positions.
   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO1/W-1 with a DOR of 26 September 2009.

2.  A Federal Recognition Board found that he was fully satisfactory in his physical qualifications, moral character, and general qualifications.  Therefore, he was promoted to CW2 with a DOR of 5 March 2012.

3.  As a result of the FY11 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and 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.  Moreover, in the applicant's case, the delay was less than 75 days, whereas the anticipated delay was 90 days or more.  While 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 Service or applicant.




4.  However, the available evidence shows he was mobilized in an active duty status effective 21 November 2010.  Memoranda, dated 17 December 2003 and 14 January 2005, by the former Assistant Secretary of the Army established promotion policy for mobilized ARNG officers that allowed for officers to be promoted if they could be assigned to the higher graded position within 180 days after completing their current tour of active duty.

5.  In a memorandum, dated 18 October 2011, the Chief, Personnel Policy Division, NGB, granted an exception to policy to promote the applicant to CW2 with a DOR of "no earlier than the date of the memorandum." 

6.  In view of the circumstances in this case, the applicant is entitled to an adjustment of his promotion effective date and DOR for CW2 to 18 October 2011 with entitlement to back pay and allowances.  However, based on the available evidence and the change in law his promotion effective date and DOR should not be further changed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X __  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was promoted to CW2 and granted Federal recognition with a DOR and effective date of 18 October 2011 with entitlement to all back pay and allowances.







2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an effective promotion date of 26 September 2011 to the rank of CW2.



      __________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)                                         AR20120005538



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ABCMR Record of Proceedings (cont)                                         AR20120005538



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