IN THE CASE OF:	  

		BOARD DATE:	 5 September 2013

		DOCKET NUMBER:  AR20120022185 


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, in effect, that his effective date of promotion and date of rank (DOR) to chief warrant officer two (CW2) in the Army National Guard (ARNG) be adjusted to 15 September 2011 or earlier.  He further requests that he be granted all pay and allowances as a result of this adjustment.

2.  He states he was a sergeant first class (SFC)/E-7 in excess of 2 years and successfully completed Warrant Officer Candidate School (WOCS) and the Warrant Officer Basic Course (WOBC).  He was also military occupational specialty (MOS) qualified; therefore, he was eligible for promotion upon completion of WOBC.  He states the delay in his promotion was due to his initial appointment packet not being submitted and processed in a timely manner.  

3.  He provides the following:  

* Orders 307-105
* Special Orders Number 67 AR 
* Special Orders Number 33 AR
* Special Orders Number 37 AR
* Two internet documents titled "Audit trail for published Federal Recognition (FEDREC) Order"

CONSIDERATION OF EVIDENCE:

1.  The applicant was promoted to SFC/E-7 on 1 May 2009.

2.  On 11 May 2011, he executed an oath of office in the Florida ARNG (FLARNG).  

3.  He attended and successfully completed WOBC from 16 May to 15 July 2011.

4.  On 3 November 2011, the FLARNG published Orders 307-015 promoting him to CW2 effective 15 July 2011.

5.  On 1 February 2012, the National Guard Bureau (NGB) published Special Orders Number 33 AR extending him FEDREC as a warrant officer one in the ARNG effective 15 July 2012 which was later amended to show the effective date as 15 July 2011.

6.  A memorandum from the Chief, Personnel Policy Division, NGB, dated
22 February 2012, shows he was promoted to CW2 effective 15 February 2012. 

7.  On 22 February 2012, the NGB published Special Orders Number 67 AR extending him FEDREC for promotion to CW2 effective 15 February 2012.

8.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 27 June 2013.  This representative recommended approval of the applicant’s request and stated the applicant was promoted to SFC effective 1 May 2009.  He signed an oath of office on 11 May 2011, and completed WOBC on 15 July 2011.

9.  The above representative further stated the applicant's contention that his promotion was delayed due to his initial appointment packet not being submitted and processed in a timely manner was untrue.  An email from the FLARNG, dated 12 June 2013, showed the applicant's packet was submitted 7 days after he completed WOBC.  Additionally, FEDREC Order Number 349 AR, dated 
27 December 2011, showed his initial appointment was appropriately backdated to read 11 May 2011.  Due to his transition from enlisted to warrant officer (WO), his promotion to CW2 upon completion of WOBC was automatic.  The FEDREC Section supports an adjustment of his CW2 DOR and effective DOR to 15 July 2011.  The representative recommends the following:

* amend FEDREC Special Orders Number 67 AR to reflect his DOR and effective date to CW2 as 15 July 2011
* amend FLARNG Orders 307-015 to show the promotion effective date as 15 July 2011
* provide him all back pay and allowances due as a result of this correction


10.  On 18 April 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments, but he failed to respond.

11.  National Guard Regulation 600-101 (WOs - 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 (DA) proponent duty 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.

12.  NGB Policy Memorandum 07-026, subject:  Policy to Appoint SFC to CW2, dated 14 August 2007, authorized States to appoint SFCs to CW2 if the individual has served a minimum of 2 consecutive years as an E-7 and:

* is certified by the DA MOS proponent prior to the date of initial appointment
* is eligible for MOS training (then he/she may be promoted to CW2 after completion of WOCS and WOBC)

13.  National Defense Authorization Action (NDAA) for Fiscal year 2001, dated 22 July 2011, subject: Changes to WO Federal Recognition Process, states 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) effective 7 January 2011.  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.  This new requirement removed the authority from NGB to approve and publish all WO Federal recognition orders.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SFC on 1 May 2009 and he held the rank continuously until he executed an oath of office on 

11 May 2011.  The evidence further shows he completed WOBC on 15 July 2011.  Therefore, he met the eligibility criteria for promotion to CW2 and should have been promoted on 15 July 2011.

2.  Through no fault of the applicant, his promotion to CW2 was delayed and he should not be penalized for this action.  As a matter of equity, his DOR to CW2 should be adjusted to 15 July 2011, the date he successfully completed WOBC and was extended FEDREC.

3.  However, as a result of the NDAA 2011, 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.  

	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.  There followed a period of time during which the procedures for processing WO appointment and promotion scrolls were developed and refined.

	b.  Although this process was modeled on the existing process of scrolling commissioned officer appointments and promotions, there was still a period during which the WO scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG WOs, and probably WOs from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.  

4.  The Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

5.  Consequently, based on the authorities cited above, any correction to the applicant's effective date to CW2 would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Unfortunately, in view of the foregoing, the full requested relief cannot be granted.


BOARD VOTE:

                                              ___  GRANT FULL RELIEF 

__X____  ___X___  ___X_____ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the Department of the Army and State Army National Guard records of the individual concerned be corrected by amending Special Order Number 67 AR, dated 
22 February, to show the applicant was promoted to and extended Federal recognition as a CW2 with a DOR of 15 July 2011 and an effective date of        15 February 2012.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 
much of the application that pertains to adjusting her effective date for promotion to CW2 from 15 February 2012 to 15 July 2011 or any other date.



      __________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)                                         AR20120022185



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ABCMR Record of Proceedings (cont)                                         AR20120022185



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