IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120008125


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 adjustment of his date of rank (DOR) for promotion to chief warrant officer four (CW4) from 6 April 2012 to 12 December 2011.

2.  The applicant states:

* prior to enactment of the 2011 National Defense Authorization Act (NDAA), Army National Guard (ARNG) officers were promoted by the Chief, National Guard Bureau (NGB), and the Secretary of the Army under the provisions of Title 32, U.S. Code
* after the 2011 NDAA, the authority was elevated from the Secretary of the service to the President of the United States
* when the new policy was signed into law, many officials were unaware of the significant changes it entailed – as a result, and until proper procedures were developed and implemented, promotions were halted or delayed
* the delay in warrant officer (WO) promotions created a significant backlog of promotion actions which further delayed promotions and caused a financial loss for those affected
* for example, he was boarded by a Federal Recognition Board (FRB) held in the State of Montana on 12 December 2011 and he was promoted by the State of Montana on 12 December 2011
* his packet was forwarded to NGB for Federal recognition; however, the aforementioned delays resulted in his promotion not being Federally recognized until 6 April 2012
* the administrative delays and staffing of his promotion action were beyond his control, so his DOR should be adjusted to the date that coincides with his State FRB

3.  The applicant provides:

* Orders 346-010, Montana Army National Guard (MTARNG), dated 12 December 2011
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* Special Orders Number 118 AR, NGB, dated 10 April 2012
* memorandum, NGB, dated 10 April 2012, subject:  Promotion as a Reserve Commissioned WO of the Army

CONSIDERATION OF EVIDENCE:

1.  On 18 September 1998 after prior enlisted service in the U.S. Marine Corps and the MTARNG, the applicant was appointed as a Reserve WO in the MTARNG.  On this same date, he executed the oaths of office.

2.  Special Orders Number 208 AR, NGB, dated 26 August 2009, extended him Federal recognition for his appointment to warrant officer one effective 5 June 2009.

3.  His record shows he received the following promotions and Federal recognition:

* on 18 September 2000, he was promoted and extended Federal recognition to the rank/grade of chief warrant officer two (CW2)/W-2
* on 23 September 2005, he was promoted and extended Federal recognition to the rank/grade of chief warrant officer three (CW3)/W-3

4.  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record – Part II) indicates he completed the Aviation Warrant Officer Advanced Course (WOAC) in 2002.

5.  On 12 December 2011, an FRB was held by the MTARNG to determine if he was qualified to be awarded Federal recognition as a CW4.  The board found him physically, morally, generally, and professionally qualified for Federal recognition as a CW4.

6.  Orders 346-010, MTARNG, dated 12 December 2011, promoted him to the rank/grade of CW4 with an effective date and date of rank of 12 December 2011.

7.  Special Orders Number 118 AR, NGB, dated 10 April 2012, extended him Federal recognition for his promotion to CW4 effective 6 April 2012.

8.  Title 10, U.S. Code, section 1211 (Officers:  ARNG of the United States) states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve officer for service as a member of the ARNG of the United States, his appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.

9.  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 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 (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 an FRB.

10.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-2 states the minimum military education requirement for promotion to CW4 is completion of the duty MOS WOAC or equivalent.

11.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO in the ARNG, states that ARNG WO's are initially appointed and 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 will be made by the President of the United States.  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 (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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's date of rank as a CW3 was 23 September 2005 and he completed the Aviation WOAC in 2002.  He was favorably considered by an FRB in December 2011 that found him physically, morally, generally, and professionally qualified for Federal recognition as a CW4. He was promoted to the rank of CW4 on 12 December 2011.  The NGB issued him Federal recognition orders for promotion to CW4 effective 6 April 2012.

2.  As a result of the 2011 NDAA, the Federal recognition of promotion of ARNG WO's is now the function of the Secretary of Defense, as delegated by the President of the United States.

	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 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.  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 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)                                         AR20110020111



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ABCMR Record of Proceedings (cont)                                         AR20120008125



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