BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130005257 


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) to chief warrant officer two (CW2) from 19 February 2013 to 10  November 2012 and his time in grade (TIG) 
* compensation for the wages he lost as a result of his delayed promotion

2.  The applicant states he is a member of the Maryland Army National Guard (MDARNG) and currently holds the rank of CW2 and the date of rank (DOR) of 19 February 2013.  His promotion from warrant officer one (WO1) to CW2 should have occurred at exactly two years from his initial appointment as long as he met all the criteria.  

	a.  He was appointed to WO1 on 10 November 2010 and graduated from the Army Rotary Wing flight school on 19 April 2012.  Based on his promotion orders, dated 21 February 2013, his DOR and TIG do not currently reflect the two year mark.  

	b.  Continuity within his battalion Warrant Officer (WO) proponent was changing hands around the time his peer group would have been submitted for Federal recognition.  Nevertheless, he provided all the required documentation to his S-1 personnel in order for this promotion to occur in a timely manner.  However, his DOR and pay are currently 3 months and 9 days (101 days) overdue.  This error was not his fault.  

	c.  The error may have occurred due to the changing promotion system from WO1 to CW2.  This error is especially prevalent in the ARNG.  Multiple WOs within his peer group are experiencing the same issue.  However, all the active duty peers he graduated from Warrant Officer School with have been promoted to CW2 at exactly 24 months TIG.  This clearly highlights a deviation between the ARNG/Reserve and active duty processes.  The Federal recognition process does not start for ARNG warrant officers until the National Guard Bureau (NGB) receives the promotion packet.  Additionally, once the NGB receives the promotion packet it still takes up to 120 days to process, which further contributes to a delay in the process.  

3.  The applicant provides:

* Special Orders (SO) Number 170 AR, dated 27 July 2011
* DA Form 1059 (Service School Academic Evaluation Report), dated       10 April 2012
* Orders Number 346-022, dated 11 December 2012
* SO Number 56 AR, dated 21 February 2013
* Memorandum, dated 21 February 2013

CONSIDERATION OF EVIDENCE:

1.  After having had previous enlisted service, Orders Number 306-017, issued by the MDARNG on 2 November 2010, appointed the applicant as a WO1 in the MDARNG effective 10 November 2010.

2.  His record contains a DA Form 1059, dated 19 April 2012, showing he attended the Initial Entry Rotary Wing Course (IERW) and the Basic Officer Leaders Course (BOLC).

3.  SO Number 170 AR, issued by the NGB, on 27 July 2011 extended him Federal recognition in the ARNG for WO1 effective 10 November 2010.

4.  Orders Number 326-061, issued by the MDARNG on 21 November 2012, promoted him to CW2 with the DOR and effective date of 10 January 2013.  The additional instructions stated the effective date of promotion in the MDARNG would be the date permanent recognition orders were published.  However, these orders were later amended by Orders Number 346-022, issued by the MDARNG, on 11 December 2012 to change his effective date to 21 November 2012.

5.  SO Number 56 AR, issued by the NGB on 21 February 2013 extended him Federal recognition in the ARNG for promotion to CW2 effective 19 February 2013.  

6.  His record contains a memorandum issued by the NGB on 21 February 2013 which states his promotion and authorization for pay and allowances in the higher grade (CW2) were effective on 19 February 2013.  TIG for promotion to the next higher grade will be computed from the effective date of this promotion.

7.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve for service as a member of the ARNG of the United States, his/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  Section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

8.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG Warrant Officer (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 proponent duty military occupational specialty 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.

9.  National Guard Regulation 600-101 further states that a WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum TIG for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WOBC, or equivalent certification, within 2 years from date of initial appointment as WO1.



10.  Fiscal Year (FY) 2011 National Defense Authorization Act (NDAA), Subject: Changes to Warrant Officer Federal Recognition Process, dated 22 July 2011, states 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.  This new requirement removed the authority from the NGB to approve and publish all warrant officer Federal Recognition Orders.

11.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, 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, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, 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).  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.

12.  Public Law 112-239, dated 2 January 2013, provides that a WO1 of the ARNG who is promoted to the grade of 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 CW2 effective as of the date 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 WO has remained in an active status since the officer was so recommended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DOR for CW2 should be adjusted from 
19 February 2013 to 10 November 2012, his TIG should be adjusted to reflect this change, and he should be compensated for the wages he lost because his promotion was delayed due a policy change in 2011 have been noted.

2.  As a result of the 2011 NDAA, 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.  This change was effective 7 January 2011 and removed NGB authority to approve and publish WO Federal recognition orders.  In addition, the applicable laws directed the effective date of a promotion of a Reserve officer shall be the date on which Federal recognition in that grade is extended.

3.  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 WO's 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.  Given the applicant was appointed on 10 November 2010 and completed BOLC on 19 April 2012, it is reasonable to presume he was recommended for promotion shortly thereafter.  However, given the fact that the State published the promotion order on 21 November 2012 and the fact that delays in his packet being processed both at the State level and at NGB were no fault of the applicant, and now based on Public Law 112-239, as a matter of equity the applicant should have his DOR for promotion to CW2 adjusted from 19 February 2013 to 10 November 2012. 

BOARD VOTE:

__x_____  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending NGB SO Number 56 AR, dated 21 February 2013, to show he was granted Federal recognition on, with his date of rank and effective date of promotion as, 10 November 2012; and


	b.  paying him any back pay or benefits to which he is entitled as a result of this correction.



      _______ _  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)                                         AR20130005257



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ABCMR Record of Proceedings (cont)                                         AR20130005257



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