IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120016313 


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 7 August 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.  When this provision was signed into law, it appears no one at the appropriate levels were aware of the significant change and impact it would have on the promotion process.  As a result, no procedures had been established to staff WO actions above the NGB level.  This resulted in administrative delays in promotion actions at various levels to allow staffing officers time to understand the new promotion process.  The time required to implement the new staffing process resulted in no ARNG WO promotions during the period February through July 2011.  The delay also 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.  The appropriate documents were forwarded to the NGB on 3 April 2012.  However, the delay pending development of staffing procedures resulted in his being issued Federal recognition orders with a DOR of 7 August 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 9 November 2011.

2.  He attended and successfully completed Phase I and Phase II of the Automotive Maintenance WO Basic Course (WOBC) from 9 January to 8 March 2012 and he was awarded military occupational specialty 915A (Unit Maintenance 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 087-036, dated 27 March 2012, issued by the MTARNG, promoted him to CW2 with a DOR and effective date of 27 March 2012.  These orders stated wearing the insignia of the higher grade was not authorized until Federal recognition had been extended by the NGB.

5.  Special Orders Number 287 AR, dated 9 August 2012, issued by the NGB, extended him Federal recognition for the purpose of promotion to CW2 with a DOR and effective date of 7 August 2012. 

6.  In the processing of this case, an advisory opinion, dated 19 February 2013, was received from the Deputy Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request to adjust his DOR to CW2 from 7 August 2012 to 27 March 2012 and opined that:

	a.  The delay the applicant complained about resulted from a change in the procedures for the promotion of WO that was mandated in the NDAA of 2011, that WO promotions be placed upon a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.  The law took effect 7 January 2011, following which there was a period of time in which the procedures for processing WO appointments and promotions were developed, refined, and were being perfected.  This developmental process did result in the delay of promotions for all ARNG WOs, and probably WOs from other components recommended for promotion during the months immediately following the enactment of the scrolling requirement.

	b.  The delay was not the result of error or injustice as much as it was the inherent consequence of elevating the appointment and promotion authority for WO to such a high level.  While it is true the processing time has been materially reduced as the service has learned how to streamline the process, the fact remains the delay is an organic feature of the new scheme mandated by Congress and not an error or an injustice specific to the applicant.

7.  On 22 March 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

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 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.

9.  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.

10.  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 9 November 2011 and he completed WOBC on 8 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 7 August 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.  However, as stated by the advisory official, 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 advisory official further stated the delay 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 7 August 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)                                         AR20120016313





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120016313



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1