IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120014127 


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 reconsideration of his earlier request for correction of his records to show his effective date and date of rank (DOR) to chief warrant 
officer two (CW2) as 15 August 2011.

2.  The applicant states he is disappointed with the decision to deny him relief and while he understands the reasons for the denial, he believes there was a document submitted with his application that was not considered by the Board.  This document is a memorandum from his State personnel branch officer explaining the reasons for the delay in submission of the promotion packet to the National Guard Bureau (NGB).  He was eligible for promotion to CW2 with 2 years of time in grade and completion of the warrant officer basic course.  However, his Federal recognition packet submitted by the Ohio Army National Guard (OHARNG) contained errors and it was returned at least twice.  Through no fault of his own he was not promoted on 15 August 2011, the date he was eligible in accordance with the State orders.

3.  The applicant provides a memorandum from his State Personnel Branch Officer, dated 14 May 2012.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120009363 on 17 July 2012.

2.  The applicant submitted a memorandum from his State Personnel Branch Officer which was not previously reviewed by the ABCMR.  Therefore, it is new evidence and as such warrants consideration by the Board.

3.  The applicant was appointed as a Reserve warrant officer in the OHARNG and executed the oaths of office on 15 August 2009.  He successfully attended and completed the Air Defense Command and Control Systems Integrator Course at Fort Sill, OK, from 27 July to 14 December 2010.  He held military occupational specialty 140A (Command and Control Systems Technician).

4.  On 14 July 2011 in a memorandum to the Office of the Adjutant General, OHARNG, the applicant's battalion commander, Special Troops Battalion, 37th Infantry Brigade Combat Team, recommended the applicant for promotion to CW2.  His brigade commander concurred on 8 August 2011.

5.  On 6 October 2011, the OHARNG published Orders 279-917 promoting him to CW2 with an effective date and DOR of 23 August 2011.

6.  On 1 May 2012, the NGB published Special Orders Number 155 AR extending him Federal recognition for promotion to CW2 effective 25 April 2012.

7.  On 14 May 2012 in a memorandum to the Board, the OHARNG Personnel Branch Officer stated the applicant's promotion packet was delayed in submission by his chain of command and then by the State Personnel Branch Office.  This office failed in its responsibility to handle the packet in a timely manner.  The final upload did not happen until February 2012, a 6-month delay that was not the applicant's fault.

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 of the Army 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 warrant officer personnel management.  Chapter 7 states that 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 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.

10.  A warrant officer must complete the minimum years of promotion service as shown in table 7-1 (for promotion to CW2, 2 years in the lower grade) and the education requirements of table 7-2 (completion of the warrant officer basic course) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a warrant officer must be medically fit and meet the height and weight standards as well as pass the fitness test.

11.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of Warrant Officers in the ARNG, states that ARNG warrant officers 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 warrant officer 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 warrant officers 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed on 15 August 2009.  He met the eligibility criteria for promotion to CW2 on 15 August 2011 in that he was in an active status and was qualified in his MOS.  Since his DOR as a warrant officer one was 15 August 2009 and since he needed 2 years of time in grade for promotion to CW2, he would have been promotable on 15 August 2011.

2.  However, as stated in the previous case, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense.

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of warrant officers that was mandated by the 2011 NDAA that warrant officers 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 warrant officer 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 warrant officer scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG warrant officers, and probably warrant officers 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 warrant officers 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, and notwithstanding the memorandum submitted by the State Personnel Branch Officer, his 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 the overall merits of this case are 

insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120009363, dated 17 July 2012.



      ____________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)                                         AR20120014127



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ABCMR Record of Proceedings (cont)                                         AR20120014127



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