BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120021053 


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 17 October 2012 to 29 June 2012.

2.  The applicant states his CW2 promotion packet was boarded by the State Federal Recognition Board (FRB) on 31 March 2012.  However, due to an oversight by the State officer branch, it was not submitted to the National Guard Bureau (NGB) until 7 June 2012, delaying his effective date of promotion more than 2 months.  If his promotion packet had been submitted to the NGB in a timely manner, his DOR would not have been 17 October 2012 but would have been at least 2 months earlier.

3.  The applicant provides a DA Form 71 (Oath of Office - Military Personnel), two orders, and a DA Form 1059 (Service School Academic Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a warrant officer one (WO1) in the Massachusetts Army National Guard (MAARNG) in military occupational specialty 131A (Field Artillery (FA) Targeting Technician) and executed an oath of office on 29 June 2010.

2.  He attended and successfully completed the FA Targeting Technician WO Basic Course (WOBC) from 7 July to 5 November 2010 at Fort Sill, OK.  

3.  Having been determined to meet all regulatory requirements, he was subsequently recommended for promotion to CW2 by his immediate commander.

4.  On 5 March 2012, the MAARNG published Orders 065-072 promoting him to CW2 with a DOR and effective date of 29 March 2012.  

5.  However, it appears it was noted that the applicant did not meet the minimum time in grade (TIG) requirement of 2 years for promotion to CW2.  The MAARNG subsequently published a corrected copy of Orders 065-072 promoting him to CW2 with a DOR and effective date of 29 June 2012.  

6.  On 19 October 2012, NGB published Special Orders Number 374 AR extending him Federal recognition for promotion to CW2 with a DOR and effective date of 17 October 2012.

7.  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.

8.  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.

9.  A WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum TIG for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WOBC, or equivalent certification, within 2 years from date of initial appointment as WO1.

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 (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO in the ARNG on 29 June 2010 and he completed WOBC on 5 November 2010.  He did not meet the TIG requirement for promotion to CW2, but appears to have been favorably considered by an FRB in March 2012 that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  However, as he did not meet all the requirements for promotion to CW2, it appears he should not have been considered for promotion by an FRB at that time.

2.  He was issued corrected State orders promoting him to CW2 effective 29 June 2012.  NGB issued him Federal recognition orders for promotion to CW2 effective 17 October 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.  

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 17 October 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)                                         AR20120021053





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ABCMR Record of Proceedings (cont)                                         AR20120021053



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