BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120011689 


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 to his date of rank for chief warrant officer (CW2) from 6 April 2012 to 17 July 2011.

2.  The applicant states:

   a.  There was an error made through no fault of his own during the processing of his initial appointment to warrant officer one (WO1).  He never received Federal recognition and a National Guard Bureau (NGB) Form 0122E (announcement of Federal recognition orders) with an appointment date of 17 July 2009.  
   
   b.  The error remained unnoticed until the submission of his CW2 promotion packet in May 2011 at which time corrections had to be made to the error concerning his initial appointment thus delaying his CW2 promotion.  His        NGB Form 0122E for WO1 was finally received on 28 December 2011 and then amended to reflect a date of 17 July 2009.  His promotion to CW2 was then resubmitted and his CW2 Federal Recognition was then resubmitted and his CW2 Federal recognition was dated 6 April 2012.  As a result, he had lost nearly 9 months time in grade.

3.  The applicant provides:

* 2009 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2009 DA Form 71 (Oath of Office - Military Personnel) 
* NGB 337 (Oaths of Office)
* Statement of Understanding for Appointment as a WO
* Assignment orders
* DA Form 1059 (Service School Academic Evaluation Report)
* CW2 promotion orders
* Recommendation for Promotion of WO memorandum
* 2011 DA Form 71
* 2011 and 2012 NGB Forms 0122E
* Personnel Qualification Record - Officers/WOs
* DA Form 705 (Army Physical Fitness Test Scorecard)
* Individual Medical Readiness
* Person Summary
* Email correspondence from a staff member of the West Virginia Army National Guard (WVARNG)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed in the WVARNG, as a WO1, on 17 July 2009, with prior enlisted service.  His records are void of his NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)) for his initial appointment in 2009.

2.  He completed the Armament Systems Maintenance WO Basic Course (WOBC) on 15 December 2010.

3.  On 8 June 2011, the WVARNG issued orders promoting him to CW2 with a date of rank and effective date of 25 March 2011.

4.  A Recommendation for Promotion to WO memorandum, dated 17 July 2011, recommended him for promotion to CW2 and stated he met all criteria for that promotion.

5.  A DA Form 71 was executed by the applicant on 17 July 2011 for appointment in the WVARNG as a CW2 on that date.

6.  NGB Special Orders Number 350 AR, dated 28 December 2011, initially appointed him in the WVARNG, as a WO1, effective 17 July 2011.

7.  NGB Special Orders Number 12 AR, dated 11 January 2012, corrected    NGB Special Orders Number 350 AR by amending his initial appointment date to read "17 July 2009" vice 17 July 2011.

8.  Special Orders Number 116 AR, dated 10 April 2012,extended him Federal recognition in the grade of CW2 with a date of rank and effective date of 6 April 2012.

9.  On 25 and 26 July and 30 November 2011, a staff member of the WVARNG stated:

	a.  The applicant was federally recognized as a WO1 on 23 February 2009.  He completed the WO Candidate School on 17 July 2009 appointing him as a WO.  At that time the board was not completed.

	b.  He was notified about the applicant's eligibility to CW2 and he put a packet together for the 25 May 2011 board.  When he submitted the package it was not known that the applicant was not federally recognized.

   c.  He was notified by the NGB on 27 June 2011 of an issue with the promotion packet.  He was requested to resubmit after the applicant was federally recognized as a WO1.  On 12 August 2011, he received a copy of the applicant's NGB Form 89 for his initial appointment.  On 14 August 2011, he submitted the applicant for Initial Appointment Federal Recognition.  He also tried to submit the applicant's promotion packet, but the NGB would not accept it until the initial appointment action was completed.

10.  National Guard Regulation 600-101 (WO - Federal Recognition and Related Personnel Actions), prescribes the policies and procedures for ARNG WO personnel management.  Paragraph 7-1 of this regulation specifies that appointment and promotion of WOs in the ARNG is a function of the state.  A WO1 must complete a minimum of 2 years time in grade for promotion to CW2.  

11.  National Guard Regulation 600-101 also specifies that these appointments and promotions must be federally recognized.  WOs may be examined for promotion not earlier than 3 months in advance of completing the prescribed promotion requirements so that, if recommended by an FREB, promotion may be effected on the date the promotion requirements are met.  FREB's convening to examine promotion of warrant officers who have passed their promotion eligibility date, may, if so recommended and determined fully qualified on their promotion eligibility date, consider granting temporary federal recognition retroactive to that date, but not earlier than 90 days from the date of the FREB.

12.  National Defense Authorization Action (NDAA) for Fiscal Year 2001, Subject: Changes to WO Federal Recognition Process, dated 22 July 2011, states 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.  This new requirement removed the authority from the NGB to approve and publish all WO Federal Recognition Orders.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant met the eligibility criteria for promotion to CW2 on 17 July 2011.  Since his DOR for WO1 was 17 July 2009 and since he needed 2 years time in grade for promotion to CW2, he should have been promoted on 17 July 2011.  

2.  Notwithstanding the fact his initial appointment as a WO1 in 2009 was not federally recognized until 2011, changes to WOs Federal Recognition process as a result of the 2011 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense.  

3.  His delay in promotion to CW2 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.

4.  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.  

5.  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.

6.  In view of the foregoing evidence and the change in law, the applicant's date of rank and effective date of promotion to CW2 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)                                         AR20120011689





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011689



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1