IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120012816 


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 that his date of rank and effective date for promotion to the rank of chief warrant officer four (CW4) be corrected to show a DOR and effective 18 August 2011, with entitlement to all back pay and allowances. 

2.  The applicant states his promotion to the rank of CW4 was delayed more than 8 months due to administrative errors committed at the State and Federal levels.  He was eligible for promotion on 18 August 2011 and had fulfilled all requirements (time in grade, performance, military occupational specialty (MOS) qualifications, etc) in order to be promoted on time.  He was not promoted on time due to administrative errors committed at the State and a subsequent change of MOS (helicopter to fixed wing pilot).

3.  The applicant provides a memorandum from his personnel officer, promotion orders to CW4, a copy of his recommendation for promotion, and an Inspector General Action Request (IGAR).  

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a helicopter pilot (MOS 153D) in the Ohio Army National Guard (OHARNG) on 18 August 2005 when he was promoted to the rank of chief warrant officer three (CW3).

2.  The applicant attended and completed the National Guard Fixed Wing Aviation Training Course during the period 24 October 2011 to 11 November 2011 in MOS 155A (C26 pilot).
3.  On 23 February 2012, orders number 054-932 issued by the OHARNG promoted the applicant to the rank of CW4 effective 2 August 2011. 

4.  Special Order 194 AR published by the National Guard Bureau (NGB) on     24 May 2012 extended him Federal recognition for his promotion to CW4 effective 18 May 2012.

5.  In the processing of this case a staff advisory opinion was obtained from the NGB which opines, in effect, that relief is not warranted because the applicant was not MOS qualified at the time the promotion recommendation was received, he was not properly slotted due to being reassigned, and the scrolling process added additional delays.

6.  The advisory opinion was provided to the applicant for comment.  He responded with a three-page memorandum, a memorandum from the Command Chief Warrant Officer, a memorandum and email regarding the changes to Federal Recognition of Army National Guard Warrant Officers, transfer orders dated 12 September 2011, orders awarding him MOS 155A, orders dated 13 December 2011 changing his duty position, a revocation of his promotion orders, and an email regarding delays in processing promotion packets in the OHARNG.  He states, in effect, that he was fully qualified for promotion on 18 August 2001 and his unit submitted his promotion packet on 20 June 2011.  He goes on to state that in June 2011, Detachment 21 of the OHARNG announced that it was deploying to Afghanistan and needed another fixed wing aviator to meet operational requirements.  He states that he interviewed for the position and was accepted and the transfer was set for September 2011, after his promotion to CW4, obtaining his MOS qualification and allowing for being properly slotted.  He was never informed that his promotion would be delayed by accepting the fixed wing position.  He states the unnecessary administrative delays were through no fault of his and contends it is unjust to impose such a substantial economic consequence on Soldiers who have worked hard to earn a timely promotion and contends that his promotion should be corrected to show he was promoted to CW4 on 18 August 2011, with entitlement to all back pay and allowances.  He states he would not have accepted a transfer had he known that his promotion would have been delayed and contends the advisory opinion from the NGB is not a factual representation of the circumstances in his case.

7.  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 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.
8.  National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer 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 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.

9.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers 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, 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.  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 for appointment will be staffed through the Department of the Army (delegated to the Secretary of Defense), 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.
  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's date of rank as a CW4 was determined by the OHARNG to be 18 August 2011.  He was considered by a Federal Recognition Board that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  The NGB issued him Federal recognition orders for promotion to CW4 effective 18 May 2012 despite his having met promotion qualification on 18 August 2011. 

2.  However, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a CW3 to CW4 is now issued by the President of the United States and is delegated to the Secretary of Defense.  

   a.  The primary delay in the applicant's promotion appears to have 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 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.  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 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)                                         AR20120012816





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ABCMR Record of Proceedings (cont)                                         AR20120012816



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