IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120008776 


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 effective date of promotion and date of rank (DOR) to chief warrant officer two (CW2) in the Army National Guard (ARNG) be adjusted to 4 August 2011 with all pay increases and incentives paid retroactively.

2.  The applicant states he was deployed to a combat theater without the required Federal recognition (FEDREC) paperwork being processed.    

3.  The applicant provides:

* DA Form 71 (Oath of Office - Military Personnel)
* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant executed an oath of office in the Maryland ARNG (MDARNG) on 4 August 2009.  

2.  On 25 August 2009, the MDARNG published Orders 237-015 appointing him in the grade of rank of warrant officer one (WO1) effective 4 August 2009.

3.  He attended and successfully completed the UH-60 aircraft qualification course from 4 August 2009 through 13 January 2011.

4.  His record shows he served in Iraq for the period 28 April through                     17 December 2011.

5.  On 3 January 2012, the NGB published Special Orders Number 4 AR extending him FEDREC for his initial appointment in the ARNG, effective 
4 August 2009.

6.  On 17 January 2012, the MDARNG published Orders 017-017 promoting him to CW2 effective 17 January 2012 with assignment to the position of Mission Planner (paragraph/line number 202/02), Company C, 2nd Battalion, 224th Aviation Regiment, Aberdeen Proving Ground, MD.  The order states, "Effective date of promotion in the ARNGUS (MD) will be the date permanent Federal recognition orders are published."

7.  On 10 April 2012, NGB Special Orders Number 117 AR were published extending FEDREC to the applicant for his promotion to CW2 effective 6 April 2012.

8.  During the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB, dated 20 November 2012, who stated the applicant's promotion was delayed as a result of a change in the requirement based on the National Defense Authorization Act (NDAA) of 2011.

9.  On 18 April 2013, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 24 April 2013, the applicant stated he did not agree with the advisory opinion.  He further stated he was serving in Iraq when his peers and those below him in order of merit and time in grade were promoted at the requested date of 4 August 2011.  Upon contacting the MDARNG, he was told they were unaware he was in Iraq and that his promotion packet could not be initiated because, according to their records, he had not received FEDREC as a WO1.  According to their records he was still awaiting training even though he had been flying combat missions for several months.   

10.  Title 10, U.S. Code, section 1211 (Officers: ARNG of the United States) states when an officer of the ARNG to whom temporary FEDREC has been extended is appointed as a Reserve 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.

11.  National Guard Regulation 600-101 (Warrant Officers (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 FEDREC 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 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 FEDREC Board.

12.  A WO 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 WO Basic Course) of National Guard Regulation 600-101 to attain eligibility for promotion and receive FEDREC 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.

13.  NGB Policy Memorandum 11-015, subject: FEDREC of WO 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 (USC), 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.  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 120 days or more to the process for approval for appointments or promotions to be completed.

14.  Title 32, USC, section 307(d) provides that FEDREC shall be extended to each officer of the Army Reserve (USAR) who has qualified for appointment as an officer of the ARNG in his reserve grade.  

15.  Title 10, USC, section 14308(f) (Effective date of promotion after FEDREC), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended FEDREC in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended.  Pursuant to Title 10, USC, section 741(d) (2) provides that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade.


DISCUSSION AND CONCLUSIONS:

1.  The applicant entered the MDARNG on 4 August 2009.  However, due to an error, he did not receive FEDREC until 3 January 2012 (though the effective date was 4 August 2009).  The MDARNG promoted him to CW2 on 17 January 2012.  He was appointed to CW2 in the USAR and received FEDREC on 6 April 2012.  The applicant requests an adjustment to his CW2 DOR to 4 August 2011.  He asserts that the error delaying his original appointment to WO1 rendered him ineligible for an earlier FEDREC date to CW2.

2.  The evidence of record shows he met the eligibility criteria for promotion to CW2 on 4 August 2011 and was qualified in his military occupational specialty.  Since his DOR as a WO1 was 4 August 2009 and since he needed 2 years time in grade for promotion to CW2, he could have been promoted on 4 August 2011.

3.  As the NGB advisory opinion notes, WO appointments were put on hold for many months following the change in the law as the NGB made adjustments to its appointment process.  From 7 January 2011 until Fall 2011, appointments were not processed.  Essentially, Soldiers who had their promotions delayed because of this statutory change were equally disadvantaged.

4.  The delay in processing the applicant's initial appointment to WO1 would have had the effect of delaying his eligibility for promotion to and FEDREC as a CW2.  However, given the delays caused by the change in the law, it is unlikely he would have received FEDREC as a CW2 in August 2011 even if this error not occurred.  As noted previously, it was not unusual for processing of appointment packages to the Secretary of Defense to take 120 days or more.  Even if the error earlier noted had not occurred, it is speculative to presume he would have been appointed as a CW2 earlier than 6 April 2012, and the NGB opinion remains consistent with opinions previously provided involving WOs who suffered promotion delays due to the changes in the law brought about by the 2011 NDAA.

5.  In view of the foregoing, he is not entitled to the requested relief.









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)                                         AR20120008776





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ABCMR Record of Proceedings (cont)                                         AR20120008776



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