IN THE CASE OF:	  

		BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120022073 


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) as a chief warrant officer two (CW2) in the Pennsylvania Army National Guard (PAARNG) from 17 October 2012 to 16 December 2011 and entitlement to back pay and allowances. 

2.  The applicant states 

	a.  The DOR under National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) can be adjusted to 16 December 2011, the date in which the military occupational specialty (MOS) of 920A (Property Accounting Technician) was awarded or 23 February 2012 following the Federal Recognition Board (FRB) order that awarded him the 920A MOS.  He believes his recent National Guard Bureau (NGB) Special Orders (SO) Number 369 AR, dated 19 October 2012 to be in error for the following reasons.  NGR 600-101 regulates and illustrates provisions in which warrant officers meeting qualifications outlined in paragraph 9-15b(5) and (6) are promotable to the grade of CW2 to be effective from the date of Department of the Army (DA) MOS certification without further FRB action.

	b.  NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 19 July 2011, reflected NGR 600-101 and his ability to be promoted to CW2 upon completion  the MOS 920A certification course.  ARNG Policy Memorandum Number 11-015, dated 16 May 2011, Subject: Federal Recognition of Warrant Officer Appointments in the ARNG, section 4(c) also “quantifies” his eligibility.  
	c.  He believes the error occurred when his promotion packet was separated from the Federal Recognition Packet that awarded him MOS 920A.  Following a review with the State Inspector General it was discovered that he met all requirements for promotion to CW2 upon being awarded MOS 920A as outlined in NGR 600-101, chapter 9.

3.  The applicant provides:

* NGB Form 89, dated 19 July 2011 (initial appointment)
* Orders 203-1012 (initial appointment)
* Extract of NGR 600-101
* DA Form 71 (Oath of Office - Military Personnel)
* Statement of Understanding for Appointment as a WO
* NGB Form 337 (Oaths of Office)
* DA Form 1059 (Service School Academic Evaluation Report)
* Orders 006-1021 (MOS order)
* NGB SO Number 68 AR (initial appointment)
* NGB SO Number 369 AR (promotion to CW2)
* Appointment and Promotion memoranda
* ARNG Policy Memorandum Number 11-015
* PAARNG Addendum to ARNG Policy Memorandum Number 11-015
* Orders 327-1005 (state promotion order)
* Orders 327-1005 (orders to sergeant first class (SFC)/E7)

CONSIDERATION OF EVIDENCE:

1.  His records show he previously served in an enlisted status in the Regular Army from January 1996 to January 1999.  He also served in the PAARNG, on active duty from 24 June 2002 to 2 December 2007.  He was promoted to the permanent rank/grade of SFC/E-7 on 23 November 2007. 

2.  He entered active duty on 4 December 2008 and completed the Warrant Officer Candidate School (WOCS).  He was honorably discharged from active duty on 30 August 2011 to accept appointment as a warrant officer of the Army. 

3.  On 19 July 2011, an FRB was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition for appointment as a WO.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FRB also recommended that he be granted Federal recognition.   

4.  On 20 July 2011, the PAARNG published Orders 203-1012 appointing him as a WO in the PAARNG, effective 22 July 2011.
5.  On 31 August 2011, he executed an oath of office as a Reserve warrant officer.  He understood that he must successfully complete WO MOS certification within 2 years of the effective date of his appointment.  

6.  Also on 31 August 2011, he executed an NGB Form 337 for appointment as a WO in the PAARNG.  He was granted temporary Federal recognition.  

7.  He attended and successfully completed the Property Accounting Technician Warrant Officer Basic Course (WOBC) at Fort Lee, VA, from 24 October 2011 to 16 December 2011. 

8.  On 6 January 2012, the PAARNG published Orders 006-1021 awarding him MOS 920A, effective 16 December 2011. 

9.  On 23 February 2012, the NGB published SO Number 68 AR extending him Federal recognition for initial appointment as a WO effective 31 August 2011. 

10.  On 29 February 2012, the NGB published SO Number 71 AR extending him Federal recognition for award of MOS 920A effective 16 December 2011. 

11.  On 19 October 2012, the NGB published SO Number 369 AR promoting him to CW2 with an effective date and DOR of 17 October 2012. 

12.  An initial advisory opinion was obtained on 13 February 2013 from the NGB in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  The NGB official stated:

	a.  The applicant was appointed and received Federal recognition as a WO upon successful completion of WOCS effective 31 August 2011.  He attended and successfully graduated from WOBC on 16 December 2011.  He was awarded MOS 920A with an effective date of 16 December 2011.

	b.  Paragraph 2 of NGB Policy Memorandum Number 07-026, dated 14 August 2007 Subject: Policy to Appoint SFC to CW2 states, "Effective on the date of this memorandum, States are authorized to appoint SFC/E7 to the grade of CW2 if they meet the criteria below.  Subparagraph (2) of this paragraph goes on to state, "SFC (E7) who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC."  The applicant met the criteria to be promoted to CW2 upon completion of WOCS and WOBC.

	c.  He completed WOCS on 16 November 2011.  The Federal Recognition for initial appointment was received on 23 February 2012 with an effective date of 31 August 2011.  The PAARNG Officer of Personnel Management received the request for promotion to CW2 on 27 March 2012 and submitted the request to the NGB on 17 April 2012.  The Federal recognition order promoting the applicant to CW2 was received at NGB on 19 October 2012 with an effective date of 17 October 2012.

	d.  The timeline of events in the applicant's case shows no unusual delays.  Further, there is nothing to suggest errors, administrative or otherwise, that caused an undue delay.  WO promotions do not get backdated to coincide with school completion and regular processing time can give the appearance of a delayed action.   

	e.  The State concurs with this recommendation.

13.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

14.  A second advisory opinion was received on 11 March 2013 from the NGB in the processing of this case.  An NGB official recommended partial approval of the applicant's request.  The NGB official stated:

	a.  The applicant was appointed and received Federal recognition as a W01 upon successful completion of WOCS effective 31 August 2011.  He attended and successfully graduated from WOBC on 16 December 2011.  He was awarded MOS 920A with an effective date of 16 December 2011.

	b.  Paragraph 2 of NGB Policy Memorandum Number 07-026, dated 14 August 2007 Subject: Policy to Appoint SFC to CW2 states, "Effective on the date of this memorandum, States are authorized to appoint SFC/E7 to the grade of CW2 if they meet the criteria below."  Subparagraph (2) of this paragraph goes on to state, "SFC (E7) who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC."  The applicant met the criteria to be promoted to CW2 upon completion of WOCS and WOBC.

	c.  He completed WOCS on 16 November 2011.  The Federal Recognition for initial appointment was received 23 February 2012 with an effective date of 31 August 2011.  The PAARNG Officer of Personnel Management received the request for promotion to CW2 on 27 March 2012 and submitted the request to the NGB on 17 April 2012.  The Federal recognition order promoting the applicant to CW2 was received at NGB on 19 October 2012 with an effective date of 17 October 2012.

	d.  The timeline of events indicate 10 months of processing time that is not accounted for.  The Federal recognition section of the NGB cannot explain why his Federal recognition order for initial appointment took over four months to process, nor can it be explained why his promotion packet to CW2 took over six months to process.  They have confirmed that based on historical data, the applicant should have received his Federal recognition order promoting him to CW2 effective 20 April 2012.  

	e.  The State concurs with this recommendation.

15.  The applicant was also provided with a copy of this advisory opinion but he did not respond.  

16.  NGR 600-101 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 DA 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 an FRB.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, two years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the fitness test.

17.  NGB Policy Memorandum Number  07-026 provides that, effective 14 August 2007, States are authorized to appoint Soldiers in the rank/grade of SFC/E-7 to the rank/grade of CW2/W-2 if they meet the following criteria.  A SFC/E-7 who has served a minimum of 2 consecutive years as a SFC may be appointed to CW2 in one of two ways:

	a.  SFC who is certified by the DA MOS proponent prior to the date of initial appointment (attendance of WOBC not required) may be appointed in the grade of CW2 upon completion of WOCS.  Constructive credit for WOCS may be granted if the Soldier has satisfactorily completed an OCS within the previous 5 years.

	b. SFC who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.  Constructive credit for WOCS may be granted if the Soldier satisfactorily completed an OCS within the previous 5 years.
18.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U. S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

19.  Title 10, U. S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant previously served in the ARNG in the rank/grade of SFC/E-7, as of 23 November 2007.  Following completion of WOCS, he was appointed as a WO in the PAARNG and executed an oath of office on 31 August 2011.  He completed WOBC on 16 December 2011 and he was awarded MOS 920A on 16 December 2011.  

2.  He was appointed and he executed an oath of office on 31 August 2011.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General, Pennsylvania, for endorsement to NGB for extension of permanent Federal recognition.  Through no fault of his, this action was not timely taken.  The date of the SO that awarded him Federal recognition for initial appointment is shown as 22 February 2012.  This suggests his initial packet for his Federal recognition was delayed.  

3.  But even if his initial packet was timely submitted, his promotion packet, including the DA Form 1059 (Service School Academic Evaluation Report) and the State orders awarding him the MOS, appears not to have been timely submitted by the unit or the State to the NGB for extension of Federal recognition.  It also appears when the packet was ultimately submitted, it went through the scrolling process and the NGB ultimately published the SO extending him Federal recognition for promotion to CW2 with an effective date and DOR of 19 October 2012. 

4.  A SFC/E-7 who is eligible for MOS training may be promoted to CW2 after completion of WOCS.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  NGR 600-101, paragraph 7-2, states in part, "promotions will be based on: DA duty proponent MOS 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 as determined by a Federal Recognition Board.  Promotion will not be used solely as a reward for past performance."

5.  He was appointed on 31 August 2011 and his promotion eligibility date (PED) per NGR 600-101 is 30 August 2013.  He was promoted to CW2 with an effective date and DOR of 19 October 2012.  Notwithstanding the second advisory opinion provided by the NGB, the applicant's date of promotion is reasonable and neither the adjustment of the effective date of promotion nor entitlement back pay and allowances is warranted at this time. 

6.  More importantly, however, as a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a WO 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 WOs that was mandated by the 2011 NDAA that WOs 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.  This process did result in the delay of the promotions of all ARNG WOs, and probably WOs following the enactment of the scrolling requirements.  

	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 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.

7.  In view of the foregoing evidence and the change in law, again, notwithstanding the partially favorable advisory opinion submitted by the NGB, the applicant's 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 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)                                         AR20120022073





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ABCMR Record of Proceedings (cont)                                         AR20120022073



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