IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130005753 


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 his effective date of promotion and date of rank (DOR) to chief warrant officer two (CW2) in the Army National Guard (ARNG) be adjusted from 19 February 2013 to 12 January 2013.

2.  The applicant states he was initially appointed as a warrant officer one (WO1) on 12 January 2011.  He graduated from the Army Rotary Wing Flight Course (his Warrant Officer Basic Course (WOBC)) on 14 June 2012.  He contends that as long as he met all other criteria for promotion, he should have been promoted from WO1 to CW2 on 12 January 2013, when he had exactly 2 years time in grade (TIG).  He further states that in spite of providing all of the necessary documentation to his personnel office in a timely manner, his Federal recognition orders awarded him a DOR and promotion effective date of 19 February 2013 which is 1 month and 38 days past the 2-year timeframe.  He is hopeful that this date will be corrected to restore his appropriate DOR and effective date so he may be compensated and he can have the appropriate time in grade.

3.  The applicant states this error may have occurred due to the changes to the promotion system for warrant officers and that this error is prevalent in the ARNG.  He adds that many ARNG warrant officers in his peer group are experiencing the same issue whereas their active duty counterparts have been promoted at exactly 24 months TIG which highlights a deviation between the ARNG/Reserve and active duty promotion processes.



4.  The applicant provides:

* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* DA Form 1290 (U.S. Army Appointment Certificate)
* U.S. Army Aviation Center of Excellence (USAACE) (Warrant Officer Career College (WOCC)) Form 667 (U.S. Army WOCC Diploma)
* 2 National Guard Bureau (NGB) Forms 0122E (NGB Federal Recognition Orders)
* DA Form 1059 (Service School Academic Report)
* Headquarters, Maryland ARNG (MDARNG) promotion orders
* NGB promotion orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the MDARNG on 24 February 2009.  He was subsequently accepted into the Warrant Officer Flight Program.  He completed the Warrant Officer Candidate Course and was appointed as a WO1 on 12 January 2011.  Accordingly, the applicant executed oaths of office for both the U.S. Army Reserve (USAR) and the MDARNG on 12 January 2011.  On 7 February 2011, the NGB published Special Orders Number 24 AR extending him Federal recognition to WO1 with an effective date and DOR of 12 January 2011.

2.  On 14 June 2012, he completed his WOBC.

3.  On 21 November 2012, Headquarters, MDARNG, Fifth Regiment Armory, Baltimore, MD, published Orders 326-062, which show he was promoted to CW2 with an effective date and DOR of 12 January 2013.

4.  On 21 February 2013, NGB published letter orders which show he was promoted to CW2 with an effective date and DOR of 19 February 2013.

5.  On 21 February 2013, the NGB published Special Orders Number 56 AR extending him Federal recognition for promotion to CW2 with an effective date and DOR of 19 February 2013.  

6.  In the processing of this case an advisory opinion was obtained from Chief, Personnel Policy Division (PPD), NGB.  The Chief, PPD recommended that the applicant's request be denied based upon the following rationale:

	a.  The purpose of ARNG Human Resource Policy Promotion Memorandum Number 11-045, dated 22 July 2011, Subject:  Guidance Concerning Applications for the Federal Recognition of Warrant Officers, was to "Provide guidance to reduce processing time for applications for the Federal recognition of ARNG warrant officer initial appointments and appointments to a higher grade.  The recent change in statute to require Federal recognition of all warrant officers, regardless of component of service, will mean a total increase in process time from 60 days to 90 days.  The elimination of common errors in application packets submitted will minimize the time necessary to staff these applications."

	b.  NGB, Federal Recognition section provided the processing history of the applicant's request as follows:

* 21 November 2012, the Federal Recognition section reviewed the applicant's promotion packet
* 26 November 2012, the applicant's promotion packet was accepted by Human Resource Personnel
* The packet was reviewed and approved by an analyst on the same day and it was forwarded and processed for scrolling on 12 December 2012
* The applicant was placed on Scroll U08-13 and the scroll left NGB for further processing on 21 February 2013
* The scroll was signed by the Secretary of Defense on 19 February 2013

	c.  Two years TIG is the minimum time required to be eligible for promotion, but it does not mean automatic promotion to the next highest grade.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions, dated 26 October 2006), paragraph 7-2, states in part, "Promotions will be based on:  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 as determined by a Federal Recognition Board (FRB).  Promotion will not be used solely as a reward for past performance."

	d.  Therefore, upon review of the evidence and the material provided by the applicant, there is no evidence of error or injustice regarding his request.

	e.  The State concurs with this recommendation.

7.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to provide a response, but he elected not to respond.



8.  National Guard Regulation 600-101 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 and tactical competence; and potential for service in the next higher grade as determined by a Federal Recognition Board.

9.  A WO must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, 2 years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a WO 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, 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 introduce a requirement that all WO appointments and promotions to chief warrant officer 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.

11.  Section 512 of Public Law 112-239, dated 2 January 2013, provides for the automatic Federal recognition and promotion of ARNG WOs from the rank/grade of WO1/W-1 to CW2/W-2 when they are being promoted to fill a vacancy in a federally recognized unit in the ARNG, effective as of the date on which that WO has completed 24 months TIG if the warrant officer has remained in an active status since they were so recommended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the effective date and DOR of his promotion to CW2 in the ARNG adjusted to 12 January 2013 has been carefully examined.
2.  The evidence of record shows the applicant's effective date and DOR as a WO1 was 12 January 2011.  As a result, his promotion eligibility date was established as 12 January 2013 based upon completion of 24 months TIG in a continuously active status.

3.  On 21 November 2012, he was issued a State order promoting him to CW2 effective 12 January 2013.

4.  On 21 November 2012, his promotion packet was reviewed at NGB.  On 26 November 2012, it was reviewed, approved, and forwarded.  It was processed for scrolling on 12 December 2012.  The applicant was placed on Scroll U08-13 and the scroll left NGB for further processing on 21 February 2013.  The scroll was signed by the Secretary of Defense on 19 February 2013; 90 days after the promotion packet was initially reviewed at NGB.

5.  On 21 February 2013, the NGB issued the applicant Federal recognition and promotion orders promoting him to CW2, effective 19 February 2013.

6.  It appears the applicant was fully eligible for promotion on 12 January 2013; however, as a result of the 2011 National Defense Authorization Act (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.  

7.  However, Section 512 of Public Law 112-239, dated 2 January 2013, provides for the automatic Federal recognition and promotion of ARNG WOs from the rank/grade of WO1/W-1 to CW2/W-2 when they are being promoted to fill a vacancy in a federally recognized unit in the ARNG, effective as of the date on which that WO has completed 24 months TIG if the warrant officer has remained in an active status since they were so recommended.

8.  In view of the foregoing and notwithstanding the advisory opinion, the applicant is entitled to full relief.  Therefore, his records should be corrected to show his effective date for promotion and DOR to CW2 as 12 January 2013.  Further, as a result of this correction, the Defense Finance and Accounting Service (DFAS) should pay him any back pay and allowances to which he is entitled as a result of this correction.







BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 to show he was promoted to CW2 and granted Federal recognition for this promotion with an effective date and DOR of 12 January 2013; and by DFAS paying him any back pay and allowances 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)                                         AR20130005753





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ABCMR Record of Proceedings (cont)                                         AR20130005753



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