IN THE CASE OF: 

		BOARD DATE:	    1 November 2012

		DOCKET NUMBER:  AR20120007625 


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 the rank/grade of chief warrant officer two (CW2)/W-2 from 15 December 2011 to
21 May 2011 and payment of all pay and allowances due as a result of the correction.

2.  The applicant states he was appointed to warrant officer one (WO1)/W-1 on 10 November 2010.

	a.  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) from the Chief, National Guard Bureau (NGB) and Secretary of the Army (SA) to the President of the United States.

	b.  NGB policy allows WOs who held the rank/grade of sergeant first class (SFC)/E-7 for more than 2 years to be promoted to CW2 upon completion of the Warrant Officer Basic Course (WOBC).  He completed WOBC on 21 May 2011, but he was not promoted until 15 December 2011.

3.  The applicant provides:

* NGB Special Orders Number 331 AR, dated 19 December 2011
* NGB Special Orders Number 11 AR, dated 20 January 2011


* Orders 182-1007, issued by the State of Texas, Adjutant General's Department, Austin, TX, dated 1 July 2003
* DA Form 1059 (Service School Academic Evaluation Report), dated
21 May 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Regular Army, U.S. Army Reserve, and ARNGUS from 10 June 1980 through 9 November 2010.

2.  Orders 182-1007, dated 1 July 2003, promoted the applicant to SFC (E-7) effective and with a DOR of 5 May 2003.

3.  He was appointed as a WO candidate effective 18 February 2010.

4.  NGB Special Orders Number 11 AR, dated 20 January 2011, extended the applicant Federal recognition effective 10 November 2010 for the purpose of initial appointment in the Texas Army National Guard (TXARNG) in the rank/grade of WO1/W-1.

5.  A DA Form 1059, dated 21 May 2011, shows the applicant completed the Automotive Maintenance WOBC during the period 25 April through 21 May 2011.

6.  On 16 June 2011, the applicant's commander recommended him for promotion to CW2/W-2.

7.  NGB Form 89 (Proceedings of a Federal Recognition Examining Board) shows the applicant was found qualified for promotion to CW2.

	a.  The board proceedings show, in part, "NGB-ARH Policy Memo #07-026, paragraph 2a(2) and paragraph 3, dated 14 August 2007, SFC (E-7) who is eligible for MOS (military occupational specialty) training may be promoted to CW2 after completion of WOCS (WO Candidate School) and WOBC."  "The applicant is promotable to the grade of CW2 to be effective from the date of the Department of the Army MOS proponent certification without further Federal Recognition Board action."  "This officer meets the exemplary conduct and is qualified for appointment in the next higher grade."

	b.  On 21 July 2011, the board recommended the applicant be granted Federal recognition in the rank/grade of CW2/W-2.


8.  Orders 214-1046, issued by the TXARNG, Adjutant General's Department, Austin, TX, dated 2 August 2011, promoted the applicant to CW2/W-2 effective and with a DOR of 21 July 2011.

9.  A DA Form 71 (Oath of Office - Military Personnel), dated 21 July 2011, shows the applicant was administered the oath of office for promotion as a Reserve WO in the rank of CW2.

10.  NGB memorandum, subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 19 December 2011, 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 December 2011.

11.  NGB Special Orders Number 331 AR, dated 19 December 2011, extended the applicant Federal recognition for the purpose of promotion to CW2 effective 15 December 2011.

12.  National Guard Regulation 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 DA proponent duty MOS 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.

13.  NGB Policy Memorandum 07-026, subject:  Policy to Appoint SFC to CW2, dated 14 August 2007, authorized States to appoint SFC to CW2 if the individual has served a minimum of 2 consecutive years as an E-7 and:

	a.  is certified by the DA MOS proponent prior to the date of initial appoint; or

	b.  is eligible for MOS training (then he/she may be promoted to CW2 after completion of WOCS and WOBC).

14.  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 DA (Deputy Chief of Staff, G-1) to the Secretary of Defense on a scroll.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.

15.  As a result of this change in the law, procedures had to be established to staff ARNGUS WO promotion actions above the NGB level.

	a.  This caused 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 WOs received.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served as an E-7 for more than
2 years prior to being appointed as a WO1 in the ARNG on 10 November 2010.

2.  The applicant completed WOBC on 21 May 2011 and he was recommended for promotion to CW2/W-2 by his commander on 16 June 2011.  On 21 July 2011, a TXARNG Federal Recognition Board recommended him for promotion and State orders were issued promoting him to CW2/W-2 in the TXARNG effective 21 July 2011.  Thus, the applicant's promotion to CW2 by the TXARNG based on him having served a minimum of 2 consecutive years as an E-7 and after he completed WOCS and WOBC was accomplished in a timely manner.

3.  The NGB announced the applicant's promotion as a Reserve commissioned WO of the Army to CW2 the extension of Federal recognition in the ARNGUS, effective 15 December 2011.


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.  This 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.  In the applicant's case, the delay was less than 150 days from the date he was recommended by the Federal Recognition Board.  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 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)                                         AR20120007625



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ABCMR Record of Proceedings (cont)                                         AR20120007625



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