IN THE CASE OF: 

		BOARD DATE:	10 October 2013

		DOCKET NUMBER:  AR20130004273 


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, adjustment of the effective date/date of rank for his Federal recognition order promoting him to chief warrant officer two (CW2) from 19 February 2013 to 5 September 2012.

2.  The applicant states he is a member of the Maryland Army National Guard (MDARNG) and holds the rank of CW2.  His date of rank is 19 February 2013.  Promotion to CW2 should be exactly two year’s time in grade as long as all the criteria have been met.  He contends he was appointed as a warrant officer one on 31 August 2010.  He graduated from Army Rotary Wing flight school on 
5 September 2012.  Both his date of rank and pay should reflect this date.  He provided all required documentation to his Personnel Officer (S-1) in order for his promotion to occur in a timely manner.  His promotion was 5 months and 14 days overdue.  This error was not his fault.  He is hopeful that this date can be corrected to provide him with the appropriate effective date and date of rank to overcome the loss of income that resulted from the late processing.

3.  The applicant further states that this error may have occurred due to the recent change in processing warrant officer promotions.  This error is especially prevalent in the Army National Guard.  He has many peers who are experiencing the exact same issue.  This does not seem to happen to active duty personnel. All of his active duty peers who graduated from the Warrant Officer School have been promoted to CW2 on time at exactly 24 months.  There is also the fact that promotions must be Federally recognized.  This process cannot start until the packet for promotion is received from the National Guard Bureau (NGB).  Once the packet is received, it still takes up to 120 days, causing the delay in promotion.

4.  The applicant provides copies of:

* DA Form 71 (Oath of Office - Military Personnel), dated 31 August 2010
* NGB Form 337 (Oaths of Office), dated 31 August 2010
* Certificate of Appointment as a Warrant Officer, dated 31 August 2010
* DA Form 1059 (Service School Academic Evaluation Report), dated
4 September 2012
* Diploma, United States Army Warrant Officer Career College, dated
31 August 2010
* Orders 326-065, MDARNG, dated 21 November 2012
* Memorandum, Promotion as a Reserve Commissioned Warrant Officer of the Army, NGB, dated 21 February 2013

CONSIDERATION OF EVIDENCE:

1.  His DA Form 71 and NGB Form 337, as provided by the applicant, indicate that he took his oath of office as a warrant officer one on 31 August 2010.

2.  A DA Form 1059, dated 5 September 2012, indicates that the applicant had completed the Rotary Wing Flight Course.

3.  Orders 326-065, MDARNG, dated 21 November 2012, announced the applicant's promotion to CW2 effective 20 November 2012.

4.  Special Orders Number 56 AR, NGB, dated 21 February 2013, announced the applicant's promotion to CW2 with an effective date of 19 February 2013.

5.  National Guard Regulation (NGR) 600-101 (Warrant Officers (WO's) - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for 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 that the minimum time in grade for promotion to CW2 is 2 years in the lower grade.

6.  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.

7.  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 Warrant Officer Basic Course.  Therefore, he was eligible for promotion.

	b.  The NGB stated that the applicant's promotion packet was delayed by the MDARNG who did not submit it for Federal recognition to the NGB until 
20 November 2012.  It was processed and he was placed on Scroll U08-13, which was forwarded for further processing in December 2012.

	c.  In February 2013, the Secretary of Defense signed Scroll U08-13.

	d.  The NGB stated that the applicant must keep in mind that eligibility for promotion does not mean automatic promotion to the next higher grade.  However, based on the circumstances surrounding this case, the initial delay was at no fault of the Soldier, NGB, or the National Defense Act of 2011.  Therefore, NGB recommended partial relief by adjusting his effective date and date of rank 


to 3 December 2012.  This was to allow for the delay by the MDARNG in sending the packet to the NGB.  In addition, the NGB recommended the applicant receive any back pay and allowances due as a result of this correction.

8.  On 15 May 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.

9.  On 20 May 2013, the applicant responded to the advisory opinion.  He acknowledged his understanding of the delay caused by the MDARNG and concurred with the MDARNG's recommended adjustment of his promotion dates to 24 September 2012, vice his requested date of 5 September 2012.

10.  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 Title 10, U.S., Code, section 12242, if the warrant officer has remained in an active status since the warrant officer was so recommended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his effective date and date of rank for promotion to CW2 should be adjusted to 24 September 2012 because of the delay in the MDARNG submitting the packet to the NGB.

2.  The available evidence clearly shows that the applicant's unit submitted his promotion packet on 24 September 2012 and that it was processed through the appropriate channels resulting in a Federal recognition date of 19 February 2013.

3.  As a result of the 2011 National Defense Authorization Act (NDAA), the promotion 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 delay by the MDARNG and the 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.


	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.

4.  Notwithstanding the NGB advisory opinion recommending a partial adjustment of the applicant's promotion effective date and date of rank to
3 December 2012, the following applies in this case:

	a.  The 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 Department of the Army records of the individual concerned be corrected by:

	a.  correcting his record 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 5 September 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)                                         AR20130004273



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