IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002562 


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 adjustment of her effective date of promotion and date of rank (DOR) to chief warrant officer four (CW4) in the Montana Army National Guard (MTARNG) from 17 January 2013 to 5 October 2012.

2.  The applicant states she was boarded by a Federal Recognition Board (FRB) on 6 August 2012 and she was promoted by State orders on that date with a DOR of 12 October 2012.  Upon completion of this action, her personnel officer forwarded the appropriate documents to the National Guard Bureau (NGB) on 7 August 2012 for the issuance of Federal recognition.  However, the delay that resulted from the implementation of the National Defense Authorization Act (NDAA) of 2011 pending the development of staffing procedures resulted in her DOR being later than it should have been and the extended administrative delays were beyond her control.  She requests adjustment of her effective date of promotion and DOR to the original date the FRB approved her promotion.

3.  The applicant provides:

* NGB Special Orders Number 21 AR
* MTARNG Orders 219-010
* NGB Form 89 (Proceedings of Federal Recognition Examining Board)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Reserve warrant officer of the MTARNG and executed the oaths of office on 3 August 2001.  She served in a variety of assignments and she was promoted to chief warrant officer three (CW3) on 5 October 2007.

2.  She successfully attended and completed the Warrant Officer Staff Course from 3 January to 8 February 2012.

3.  On 6 August 2012, an FRB was held by the MTARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW4. The proceedings indicated the applicant was satisfactory in her physical qualifications, moral character, and general qualifications.  She was qualified for promotion to CW4, Human Resources Technician, MTARNG.

4.  On 6 August 2012, the MTARNG published Orders 219-010 promoting the applicant to CW4 with an effective date and DOR of 5 October 2012.

5.  On 23 January 2013, NGB published Special Orders Number 21 AR extending the applicant Federal recognition for promotion to CW4 with an effective date and DOR of 17 January 2013.

6.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Branch, NGB, dated 27 June 2013.  The advisory official recommended partial approval of the applicant's request to adjust her DOR to 5 October 2012 and the State supports the recommendation.  The advisory official stated:

	a.  The promotion effective date cannot be changed.  This is the date the Secretary of Defense signs the scroll on which the Soldier is listed for promotion.

	b.  The Soldier's promotion packet was considered by an FRB at the State level and was approved on 5 October 2012.  This is supported by the State orders that promoted her with an effective date and DOR of 5 October 2012.

	c.  The delay in the applicant's promotion resulted from the change in the procedure for promotions of warrant officers mandated by NDAA 2011.  Warrant officer promotions are placed on a scroll and staffed to the Secretary of Defense. The delay in question was not the result of an error or injustice as much as it was an inherent consequence of elevating the appointment and promotion authority of warrant officers to such a high level.

7.  The applicant was provided with a copy of this advisory opinion, but she did not respond.

8.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) 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 Department of the Army proponent duty military occupational specialty certification via satisfactory completion of appropriate level of military education, time in grade, demonstrated technical/tactical competence, and potential for service in the next higher grade as determined by an FRB.

9.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW4, 4 years in the lower grade) and the educationalrequirements of Table 7-2 (completion of Warrant Officer Senior Staff Course) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a warrant officer must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

10.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of Warrant Officers in the ARNG, states that ARNG warrant officers are initially appointed and are also promoted by the State or Territory to which the officers are assigned.  The Chief, NGB, reviews and approves those actions. 
Title 10, U.S. Code, sections 571b and 12241b, introduce a requirement that all warrant officer 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 NDAA 2011, effective 7 January 2011 all initial appointments of warrant officers 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 considered for promotion to CW4 by an FRB that convened in August 2012.  She was found fully qualified.  The State published the promotion orders effective 5 October 2012.  It is unclear at what stage her promotion packet was forwarded to the NGB.  It is equally unclear when NGB processed her Federal recognition.

2.  However, as the applicant contends, the promotion to CW4 is now issued by the President of the United States and is delegated to the Secretary of Defense as a result of NDAA 2011.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.

3.  With a State effective date of promotion of 5 October 2012, processing the Federal recognition by NGB was accomplished in January 2013 which is very reasonable given the added authority for a scroll by the Secretary of Defense.  Notwithstanding the partially favorable opinion by NGB, the applicant's effective date of promotion and DOR 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 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)                                         AR20130002562



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ABCMR Record of Proceedings (cont)                                         AR20130002562



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