IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120014927 


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 correction of his date of rank (DOR) to chief warrant officer two (CW2) from 13 July 2012 to 27 March 2012.

2.  The applicant states:

	a.  Prior to the enactment of the 2011 National Defense Authorization Act (NDAA), all Army National Guard (ARNG) Warrant Officers (WO) were promoted by the Chief, National Guard Bureau (NGB).  When the 2011 NDAA went into effect, promotions were elevated to the President of the United States level.

	b.  As a result, no procedures had been established to staff WO actions above the NGB level and resulted in all promotion actions being halted for several months in order to comply with the new law.  The time required to implement a new staffing process resulted in administrative delays in promotion actions.  This delay resulted in financial loss as well as a delayed DOR which will delay future promotions due to minimum time in grade requirements.

	c.  He was boarded by a Federal Recognition Board (FRB) on 27 March 2012 and promoted on State orders with a DOR of 27 March 2012.  However, because of the staffing process, he was issued Federal recognition orders with a DOR of 13 July 2012.  Because of the extended administrative delay in developing the process, and the subsequent staffing of his promotion action which was beyond his control, he asks that his DOR be adjusted to 27 March 2012.

3.  The applicant provides two orders and NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a WO in the Montana ARNG (MTARNG) and he executed an oath of office on 17 November 2011.

2.  He attended and successfully completed the Adjutant General WO Basic Course (WOBC) from 9 January to 9 March 2012 and he was awarded specialty 420A (Military Personnel Technician).

3.  On 27 March 2012, an FRB was held by the MTARNG to determine if the applicant was qualified to be awarded Federal recognition as a CW2.  The applicant was found to be satisfactory in his physical qualifications, moral character, and general qualifications and he was recommended for promotion.

4.  Orders Number 087-035, issued by the MTARNG, dated 27 March 2012, promoted the applicant to CW2 with a DOR and effective date of 27 March 2012.  These orders stated wearing the insignia of higher grade was not authorized until Federal recognition has been extended by the NGB.

5.  Special Orders Number 264 AR, issued by the NGB, dated 23 July 2012, extended him Federal recognition for the purpose of promotion to CW2 with a DOR and effective date of 13 July 2012.

6.  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/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  Section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

7.  National Guard Regulation 600-101 (Warrant Officers – 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 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 military occupational specialty 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.

8.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, 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, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, 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).  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 as a WO in the ARNG on 17 November 2011 and he completed WOBC on 9 March 2012.  He met the requirements for promotion to CW2 and he was favorably considered by an FRB on 27 March 2012 that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.

2.  He was issued State orders promoting him to CW2 effective 27 March 2012.  NGB issued him Federal recognition orders for promotion to CW2 effective 13 July 2012.

3.  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.  This change was effective 7 January 2011 and removed NGB authority to approve and publish WO Federal recognition orders.  In addition, the applicable laws directed the effective date of a promotion of a Reserve officer shall be the date on which Federal recognition in that grade is extended.

4.  It is very likely that the delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of WO's that was mandated by the 2011 NDAA 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.  There followed a period of time during which the procedures for processing WO appointment and promotion scrolls were developed and refined.

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 WO's 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, the applicant's effective date of promotion of 13 July 2012 seems appropriate and reasonable and should not be changed.

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)                                         AR20120014927



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ABCMR Record of Proceedings (cont)                                         AR20120014927



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