IN THE CASE OF: 

		BOARD DATE: 18 June 2013

		DOCKET NUMBER:  AR20120020359 


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 15 February 2012 date of rank (DOR) and effective date for promotion to chief warrant officer four (CW4) be changed to 22 July 2011.

2.  The applicant states that:

	a.  Prior to enactment of the 2011 National Defense Authorization Act (NDAA), Army National Guard (ARNG) officers were promoted by the Chief, National Guard Bureau (NGB), and the Secretary of the Army under the provisions of Title 32, U.S. Code.

	b.  After the 2011 NDAA, the authority was elevated from the Secretary of the service to the President of the United States.

	c.  When the new policy was signed into law, many officials were unaware of the significant changes it entailed – as a result, and until proper procedures were developed and implemented, promotions were halted or delayed.

	d.  The delay in warrant officer (WO) promotions created a significant backlog of promotion actions which further delayed promotions and caused a financial loss for those affected.

	e.  For example, he was boarded by a Federal Recognition Board (FRB) held in the State of Pennsylvania on 22 July 2011 and he was promoted on state promotion orders on 22 July 2011.
	f.  His packet was forwarded to NGB for Federal recognition; however, the aforementioned delays resulted in his promotion not being Federally recognized until 15 February 2012.

	g.  The administrative delays and staffing of his promotion action were beyond his control, so his DOR should be adjusted to the date that coincides with his State FRB.

3.  The applicant provides:

* 22 February 2012, NGB Memorandum Subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army
* 22 February 2012, Special Orders announcing his Federal Recognition as a CW4 effective 15 February 2012 
* 29 July 2011, Pennsylvania Army National Guard (PAARNG) Orders 
210-1005 showing his promotion to CW4 with DOR of 22 July 2011
* 23 September 2011, PAARNG Special Orders 266-1026 

CONSIDERATION OF EVIDENCE:

1.  Following prior service in the U.S. Army Reserve and Maine Army National Guard, the applicant was granted temporary Federal recognition as a chief warrant officer three (CW3) in the PAARNG effective 1 February 2011. 

2.  On 22 July 2011, an FRB was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW4.

3.  On 29 July 2011, the PAARNG published Orders 210-1005, announcing his promotion to CW4 with an effective date and DOR of 22 July 2011.

4.  On 22 February 2012, Department of the Army and the Air Force National Guard Bureau Special Orders Number 62 AR extended him Federal recognition for promotion to CW4 with an effective date and DOR of 15 February 2012.  

5.  During the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB.  The advising official recommended disapproval of the applicant's request and stated:

	a.   The delay results from a change in the procedures for promotion of warrant officers that was mandated in the National Defense Authorization Act of 2011 that warrant officer 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.  There followed a period during which the procedures for processing warrant officer appointment and promotion scrolls were developed and refined.  Though this process was modeled on the existing process for scrolling officer appointments and promotions, there was still a period during which the warrant officer scrolling process was being perfected.  The development process resulted in the delay of promotions for all ARNG warrant officers recommended for promotion during the months immediately following the enactment of the scrolling requirement.

	b.  The delay in question was not the result of "error" or "injustice" as much as it was the inherent consequence of elevating the appointment and promotion authority of warrant officers to such a high level, making it across the board rather than an isolated event.

6.  On 6 May 2013, a copy of the advisory opinion was sent to the applicant for information and an opportunity to submit comments and/or rebuttal.  A response was not received.

7.  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, in accordance with the 2011 National Defense Authorization Act (NDAA), effective 7 January 2011 all initial appointments of WOs 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 applicant was favorably considered by an FRB in July 2011.  He was promoted to the rank of CW4 on 22 July 2011.  The NGB issued him Federal recognition orders for promotion to CW4 effective 15 February 2012.

2.  As a result of the 2011 NDAA, the promotion to CW4 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.  The law took effect on 7 January 2011.  
	b.  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 a higher level.  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.

3.  In view of the foregoing evidence and the change in law, the applicant's DOR and effective date of promotion seem 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)                                         AR20130003384



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ABCMR Record of Proceedings (cont)                                         AR20120020359



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