IN THE CASE OF:

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130003661 


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, an adjustment of the effective date/date of rank shown on his Federal recognition order promoting him to chief warrant officer two (CW2) from 29 January 2013 to 18 November 2012.

2.  The applicant states he was deployed to Afghanistan from 1 April 2012 to 
19 December 2013.  He completed his promotion packet on the first day of the 90-day window prior to 18 November 2012 and mailed it to the Tennessee State Personnel Officer (S-1).  He understood his packet was correct and there should be no problems.  The State of Tennessee promotion order shows his promotion date as 18 November 2012; however, he did not receive Federal recognition until 29 January 2013.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  Special Orders Number 266 AR, National Guard Bureau (NGB), dated 
2 December 2010, announced the applicant's initial appointment to warrant officer (WO) one effective 18 November 2010.

2.  Orders 264-842, Tennessee National Guard, dated 20 September 2012, announced the applicant's promotion to CW2 effective 18 November 2012.

3.  Special Orders Number 31 AR, NGB, dated 31 January 2013, announced the applicant's promotion to CW2 with an effective date of 29 January 2013.
4.  National Guard Regulation (NGR) 600-101 (WO's - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for Army National Guard (ARNG) WO personnel management.

	a.  Chapter 7 states that promotion of WO's 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.

	b.  Promotions will be based on the Department of the Army 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.

	c.  A WO must complete the minimum years of promotion service as shown in Table 7-1 of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum time in grade for promotion to CW2 is 2 years in the lower grade.

5.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, wherein a recommendation was made for partial approval of the applicant's request.

	a.  The NGB stated the applicant had met the 2-year time in grade requirement and education requirement by completing the WO Basic Course prior to 18 November 2012.  Therefore, he was eligible for promotion.

	b.  The NGB stated the applicant's promotion packet was received on 
21 September 2012.  It was processed and forwarded for scrolling on 
25 September 2012.  He was placed on Scroll U04-13, which left the NGB on 
13 November 2012.

	c.  On 29 January 2013, the Secretary of Defense signed Scroll U04-13.

	d.  The NGB stated the applicant must keep in mind that eligibility for promotion does not mean automatic promotion to the next higher grade.  However, because the applicant had submitted his packet approximately 90 days prior to his eligibility date, it was recommended that the effective date of his promotion to CW2 be adjusted to reflect 14 December 2012, and that he receive all pay and benefits associated with such correction.

6.  On 22 July 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.  No response was received.

7.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's 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 introduced a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States.  As a result, 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.

8.  Public Law 112-239, dated 2 January 2013, provides that if a warrant officer one (WO1) of the National Guard is promoted to the grade of chief warrant officer two (CW2) to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade of chief warrant officer (CW2) effective as of the date on which that officer has completed the service in the grade prescribed by the Secretary concerned under section 12242 of Title 10, U.S. Code, if the warrant officer has remained in an active status since the warrant officer was so recommended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his effective date and date of rank for promotion to CW2 should be adjusted to 18 November 2012 because he submitted his promotion packet 90 days prior to his eligibility date.

2.  The available evidence clearly shows the applicant submitted his promotion packet approximately 90 days prior to his eligibility date and that it was processed through the appropriate channels resulting in a Federal recognition date of 29 January 2013.

3.  As a result of the 2011 National Defense Authorization Act, the promotion to CW2 normally takes 90 to 120 days to process.  The delay in the applicant's promotion resulted from this statutory change in the procedures.  The law took effect on 7 January 2011.

4.  Notwithstanding the NGB advisory opinion recommending a partial adjustment of the applicant's effective date for promotion, the following applies in this case:

	a.  The Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The Board has no authority to correct records created by other Services or the Department of Defense.  Promotion to CW2 requires approval by the Secretary of Defense.

	b.  Any correction by the ABCMR must comply with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record and thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are tied.

5.  However, in accordance with Public Law 112-239 effective 2 January 2013, the applicant's request should be partially granted by showing his effective date and date of rank for CW2 as 2 January 2013.

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 all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  correcting his records to show he was promoted to CW2 and granted Federal recognition with an effective date and date of rank of 2 January 2013; and

	b.  paying him all monies due as a result of this correction.
2.  The Board further determined that 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 changing his effective date and date of rank for CW2 to 18 November 2012.



      _______ _  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)                                         AR20120006342



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ABCMR Record of Proceedings (cont)                                         AR20130003661



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