IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20120005613 


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 his date of rank (DOR) as a chief warrant officer two (CW2) be adjusted from 5 March 2012 to 18 February 2012. 

2.  The applicant states the DOR shown on his Federal recognition order should be the same date shown on his State promotion order, which is the date the Federal Recognition Board (FRB) convened and approved his promotion.  The delay in promotion, caused by the National Defense Authorization Act of 2011 caused him a financial loss and a potential delay in future promotions.

3.  The applicant provides the following documents:

* Orders 326-05, dated 22 November 2011 (State promotion order)
* National Guard Bureau (NGB) Federal Recognition Special Orders Number 76 AR, dated 6 March 2012
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a Reserve warrant officer of the Army and the Montana Army National Guard (MTARNG) and executed an Oath of Office on 18 February 2010.

2.  He successfully attended and completed the Warrant Officer Basic Course (WOBC) at the U.S. Army Engineer School, Fort Leonard Wood, MO, from 23 August to 3 September 2010.
3.  He entered active duty on 2 October 2010 and served in Afghanistan from 18 October 2010 to 29 January 2011.  He was honorably released from active duty on 16 February 2011.  

4.  He was assigned as a Commander, 1049th Engineer Detachment, Fort Harrison, MT, on 16 March 2011.

5.  On 22 November 2011, an FRB was held by the MTARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW2. The proceedings indicate the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB also recommended he be granted Federal recognition.   

6.  On 22 November 0211, the MTARNG published Orders Number 326-005 promoting him to CW2 effective 18 February 2012.  

7.  On 6 March 2012, the NGB published Special Orders Number 76 AR extending the applicant Federal recognition for promotion to CW2 with an effective date and DOR of 5 March 2012. 

8.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer 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 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 an FRB.

9.  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) of National Guard Regulation 600-101 to attain eligibility for promotion 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 APFT.

10.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers 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 warrant officer 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.  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 applicant was appointed as a WO in the ARNG on 18 February 2010.  He met the eligibility for promotion to CW2 on 18 February 2012 in that he was in an active status and he was recommended by an FRB.  Since his DOR as a WO1 was 18 February 2010 and since he needed 2 years time in grade for promotion to CW2, he should have been promoted on 18 February 2012.

2.  However, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion to CW2 is now issued 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.

3.  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)                                         AR20120005613



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ABCMR Record of Proceedings (cont)                                         AR20120005613



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