IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120012980 


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 her promotion effective date and date of rank (DOR) to chief warrant officer two (CW2) from 17 April 2012 to 17 April 2011.

2.  The applicant states:

	a.  She submitted a promotion packet through proper channels in November 2010 to be processed by the unit's administrative officer in December 2010 while she was deployed with another unit.  For 2 months no action was taken by the administrative officer on the promotion packet.  In March 2011, while overseas in a combat environment, she discovered that her promotion packet had not been processed and she contacted the unit to determine the reason for delay.

	b.  The unit administrative officer's initial response was to state that she was unable to be promoted because she was deployed.  The unit administrative officer also responded that no action had been taken because the officer no longer belonged to the non-deployed unit and the rear detachment of the officer's deployed unit should action the promotion packet.

	c.  She contacted the rear detachment and found that the promotion packet had in fact not been processed due to the confusion over which unit was responsible for the processing of the packet.  Once the proper unit finally processed the packet and sent it through to the Battalion S-1 to the Brigade G-1 to the State G-1, she discovered the State G-1 made several mistakes on the packet which prevented her from being placed on the Federal Recognition Warrant Officer Promotion Scroll.  The packet was returned to the State G-1 department three times due to those mistakes.

	d.  The actions or inaction of the administrative officers of two separate units and the mistakes made on her promotion packet by the G-1 were timely errors resulting in her losing 1 year of time in grade in the next higher grade of CW2.

3.  The applicant provides:

* 2009 appointment and Federal recognition orders
* nine email messages between herself, the Assistant S-1, and Joint Force Headquarters-Georgia (JFHQ-GA)
* Georgia Army National Guard (GAARNG) Orders 143-727, 234-825, 
252-853, and 348-827
* National Guard Bureau (NGB) Special Orders (SO) Number 134 AR
* 2012 CW2 promotion and orders and Federal recognition orders

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a warrant officer one (WO1) in the GAARNG effective 17 March 2009 with prior enlisted service.

2.  The GAARNG published the following:

* Orders 143-727, dated 23 May 2011, promoting her to CW2 with a DOR and effective date of 20 April 2011
* Orders 234-825, dated 22 August 2011, promoting her to CW2 with a DOR and effective date of 16 August 2011
* Orders 252-853, dated 9 September 2011, promoting her to CW2 with a DOR and effective date of 16 August 2011
* Orders 348-827, dated 14 December 2011, promoting her to CW2 with a DOR and effective date of 27 September 2011

3.  On 16 August 2011, NGB approved an exception to policy (ETP) for promotion of the applicant to CW2.

4.  NGB published SO Number 134 AR, dated 20 April 2012, extending Federal recognition to the applicant in the grade of CW2 with an effective date of 17 April 2012.

5.  On 21 July 2011, the Secretary of Defense approved the scroll for officers whose promotion packages were delayed after 7 January 2011.

6.  In an advisory opinion, dated 8 March 2013, the Chief, Personnel Division, NGB, Arlington, Virginia, recommended approval of the applicant's requests.  The NGB official stated:

	a.  The applicant was eligible for promotion to her current grade on 17 March 2011.  In accordance with ARNG-HRH Policy Memorandum Number 12-044, dated 30 May 2012, subject:  Rescission of NGB-ARH Policy Memorandum Number 06-068, National Guard Regulation 600-101 (Implementing Draft 
ARNG-HRC Policy Memorandum Number 11-059) and Interim Change to National Guard Regulation 600-101, dated 1 October 1996, paragraph 9-10, the Soldier submitted her package for promotion to JFHQ-GA.  This policy states, "An applicant may be examined for promotion not earlier than 120 days in advance of completing the prescribed time in grade requirements outlined in chapter 7.  All other promotion requirements of chapter 7 must be met at the time of board examination."

	b.  The applicant provided all necessary documents to the appropriate personnel in JFHQ-GA in November 2010 and it appears no action was taken to process her packet.  She was transferred from JFHQ-GA to the 171st Aviation for the purpose of deploying with the unit to Iraq.  At the time the transfer took place in January 2011, her packet had still not been processed by JFHQ-GA.

	c.  The applicant made an inquiry to JFHQ-GA from Iraq about her promotion status and was told that since she had deployed with the 171st Aviation, the 78th Aviation Troop Command had to complete her packet as her higher headquarters.  No action had been taken on her promotion packet at this time.

	d.  In March 2011, the applicant was told that she could not be promoted until she returned from deployment due to being deployed in a first lieutenant position rather than a WO position.

	e.  National Guard Regulation 600-101, paragraph 7-2b, states, "Except as provided in this chapter, promotions will be accomplished only when an appropriate MTOE [modified table of organization and equipment] or TDA [table of distribution and allowances] position vacancy exists in the unit."  The applicant was filling a position coded for a major when she deployed.  WO can be promoted when they are filing officer positions, but the position must have the code "XZ" assigned to it.  The position she was filing did not have the "XZ" code.

	f.  On 18 March 2011, the Chief of the WO Policy Branch notified JFHQ-GA that they could submit a request for an ETP in order for the applicant to be considered for promotion.  On 18 April 2011, the request for an ETP was approved by NGB allowing for the applicant's promotion packet to go before the State Federal Recognition Board.

	g.  The applicant's promotion packet was received by the NGB Federal Recognition Branch on 23 May 2011.  It was returned for corrective action and was not received again until 22 August 2011.  The corrections necessary are not noted in the data base.  In August 2011, the NGB Federal Recognition Branch had to return the packet to JFHQ-GA a second time for more corrections.  It was received back from the State in October 2011.  Her promotion was delayed a third time for unknown reasons and not forwarded for placement on the scroll until February 2012.  Her Federal recognition orders for promotion to CW2 were published in April 2012, 3 months after receipt at the Pentagon.

	h.  The applicant first requested promotion to her current grade in October 2011 and was in receipt of her promotion order in April 2012, 18 months later.  Regular and acceptable processing time for promotion to CW2 is approximately 90 to 120 days.

	i.  There are documents to show that the errors, mistakes, and lag time are not the fault of the Soldier and her promotion should have been effective April 2011 rather than April 2012, a difference of 12 months of time in grade.

7.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 12 March 2012 and she concurred on 13 March 2013.

8.  National Guard Regulation 600-101 prescribes the policies and procedures for ARNG WO personnel management.  Paragraph 7-1 specifies that appointment and promotion of WO's in the ARNG is a function of the State Adjutant General.  A WO1 must complete a minimum of 2 years of time in grade for promotion to CW2.

9.  National Guard Regulation 600-101 also specifies that these appointments and promotions must be Federally recognized.  WO's may be examined for promotion not earlier than 3 months in advance of completing the prescribed promotion requirements so that, if recommended by a Federal Recognition Examining Board (FREB), promotion may be effected on the date the promotion requirements are met.  FREB's convening to examine promotion of WO's 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.

10.  National Defense Authorization Action (NDAA) for Fiscal year 2001, dated 22 July 2011, subject: Changes to WO Federal Recognition Process, states 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) effective 7 January 2011.  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 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 her DOR to WO1 was 17 March 2009 and since she needed 2 years of time in grade for promotion to CW2, she should have been promoted on 17 March 2011.

2.  In November 2010, she submitted her promotion packet to the GAARNG and they failed to act on her packet for several months.  Further, NGB returned her packet several times to correct errors made by the GAARNG.  NGB finally accepted her packet in October 2011.  Her name was forwarded to the Secretary of Defense in February 2012.  She was appointed in the ARNG and received Federal recognition as a CW2 with an effective date and DOR of 17 April 2012.  Through no fault of the applicant, her promotion to CW2 was delayed and she should not be penalized for this action.  As a matter of equity, her DOR to CW2 should be adjusted to 21 July 2011, the approval date of the promotion scroll by the Secretary of Defense of those officers whose promotion packets were delayed.

3.  Due to changes to WO's 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.  A statutory change in the procedures for the promotion of WO's mandated by the 2011 NDAA requires that WO's 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.

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 WO's, and probably WO's from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.

5.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

6.  Consequently, based on the authorities cited above, any correction to the applicant's effective date to CW2 would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Unfortunately, in view of the foregoing, the requested relief cannot be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the Department of the Army and State Army National Guard records of the individual concerned be corrected by amending SO Number 134 AR, dated 20 April 2012, to show the applicant was appointed in the GAARNG and extended Federal recognition as a CW2 with a DOR of 21 July 2011 and an effective date of 17 April 2012.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 

much of the application that pertains to adjusting her effective date for promotion to CW2 from 17 April 2012 to 17 April 2011 or any other date.



      _______ _   _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)                                         AR20120012980



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ABCMR Record of Proceedings (cont)                                         AR20120012980



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