IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120006729 


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) for promotion to chief warrant officer two (CW2)/pay grade W-2 from 15 February 2012 to 6 December 2011.

2.  The applicant states that on 7 January 2011, the Fiscal Year 2011 (FY11) National Defense Authorization Act (NDAA) was enacted.  It elevated all promotion approvals for Army National Guard (ARNG) of the United States (ARNGUS) warrant officers (WO's) from the Chief, National Guard Bureau (NGB), and Secretary of the Army to the President of the United States.

	a.  Procedures had to be established to staff ARNGUS WO promotion actions above the NGB level.  This resulted in all promotion actions being halted for several months and then administrative delays in the promotion actions as government officials became familiar with the new promotion process.

	b.  In June 2011, written guidance was issued and a correction was made to the guidance in July 2011.  These administrative matters caused delays in all WO promotions that resulted in financial loss and may also adversely affect future promotions due to the delayed promotion eligibility dates these WO's received.

	c.  Under the previous promotion procedure, the administrative process was very efficient and ARNG WO promotions were granted Federal recognition as of the date of the Federal Recognition Board (FRB).

	d.  The South Dakota ARNG (SDARNG) FRB recommended him for promotion on 6 December 2011 and he was promoted by the SDARNG on that date.  Although his Federal recognition packet was sent to NGB in a timely manner, his promotion was delayed due to the 2011 NDAA procedures.  He was granted Federal recognition of his promotion to CW2 with a DOR of 15 February 2012.

3.  The applicant provides copies of his FRB, SDARNG promotion orders, oath of office, and NGB promotion orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the ARNGUS from 6 December 2005 through 27 October 2009.

2.  He was appointed as a Reserve WO in the ARNGUS and extended Federal recognition as a warrant officer one (WO1)/pay grade W-1 in the SDARNG effective 28 October 2009.

3.  An NGB Form 89 (Proceedings of a Federal Recognition Examining Board) shows the applicant was found qualified for promotion to CW2.  On 6 December 2011, the board recommended that the applicant be granted Federal recognition in the rank of CW2.

4.  SDARNG Orders 340-524, dated 6 December 2011, promoted the applicant to CW2/W-2 in the SDARNG effective 6 December 2011.

5.  A DA Form 71 (Oath of Office – Military Personnel) shows the applicant executed the oath of office for promotion as a Reserve WO in the rank of CW2 on 6 December 2011.

6.  NGB Special Orders Number 67 AR, dated 22 February 2012, announced the extension of Federal recognition in the ARNGUS of the applicant's promotion to CW2 effective 15 February 2012.

7.  NGB memorandum, dated 22 February 2012, subject:  Promotion as a Reserve Commissioned WO of the Army, shows the applicant was promoted to CW2 in the Reserve of the Army for service in the ARNGUS effective and with a DOR of 15 February 2012.

8.  National Guard Regulation 600-101 (WO's – Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO's 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 an FRB.

9.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, 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.

	a.  Title 10, U.S. Code, sections 571b and 12241b, introduce a requirement that all WO appointments and promotions to chief WO 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 WO's 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO1/W-1 with a DOR of 28 October 2009.

2.  He was recommended for promotion to CW2/W-2 by a SDARNG FRB on 6 December 2011 and State orders were issued promoting him to CW2/W-2 in the SDARNG effective 6 December 2011.

3.  NGB announced the applicant's promotion as a Reserve commissioned WO of the Army and the extension of Federal recognition in the ARNGUS of the applicant's promotion to CW2 effective 15 February 2012.

4.  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 WO's that was mandated by the 2011 NDAA that WO's 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 WO's (and probably WO's 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 WO's 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.

5.  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 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 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)                                         AR20120006729



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ABCMR Record of Proceedings (cont)                                         AR20120006729



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