IN THE CASE OF:	  

		BOARD DATE:  25 June 2013

		DOCKET NUMBER:  AR20130006623 


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 his chief warrant officer two (CW2) date of rank (DOR) from 15 February 2012 to 10 February 2011.

2.  He states he was promoted to the rank of master sergeant (MSG)/E-8 on 15 February 2006.  He entered Warrant Officer Candidate School (WOCS) with the understanding he would be promoted to the rank of CW2 upon graduation from the Adjutant General (AG) Warrant Officer Basic Course (WOBC) on 10 February 2011 in accordance with National Guard Bureau (NGB)-ARH Policy Memorandum #07-026, dated 14 August 2007.  He adds that he is not requesting back pay, only correction of his DOR.  If his DOR is adjusted to 10 February 2011 he can attend the WO Advanced Course and get back on track with his career with his peers.

3.  He provides:

* Recommendation for Federal Recognition Board (FRB) Promotion to WO memorandum
* Annual Records Review Personnel Qualification Record Junior
* The Adjutant General (TAG) State of Georgia Orders 236-857
* TAG State of Georgia Orders 067-088
* weight control documents
* DA Form 71 (Oath of Office – Military Personnel)
* DA Form 3349 (Physical Profile)
* DA Form 705 (Army Physical Fitness Test Scorecard)


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show after prior U.S. Marine Corps Reserve service he enlisted in the Army National Guard (ARNG) on 1 July 1995. 

2.  On 8 March 2006, TAG, State of Georgia Orders 067-088 promoted him to the rank of MSG, effective 15 February 2006.

3.  Effective 26 April 2010, he was discharged from the ARNG in the rank of MSG to accept an appointment to Warrant Officer One (WO1) in the USAR and in the ARNG effective 27 April 2010.

4.  On 27 April 2010, he completed WOCS.

5.  On 7 October 2010, NGB issued Special Orders Number 224 AR extending him Federal recognition for initial appointment in the rank of WO1 effective 27 April 2010.

6.  On 10 February 2011, he completed the Human Resources WOBC.  

7.  Georgia ARNG (GAARNG) Orders 48-720, dated 17 February 2011, awarded him military occupational specialty (MOS) 420A effective 10 February 2011.  Additional instructions stated that wearing of insignia was not authorized until Federal Recognition was confirmed.

8.  On 16 August 2011, an FRB found him to be qualified for Federal Recognition as a CW2.

9.  He submits a GAARNG Element memorandum, subject:  Recommendation for FRB Promotion to Warrant Officer, dated 24 August 2011.  The memorandum stated under the provisions of Chapter 8 of National Guard Regulation (NGR) 600-101 (WO – Federal Recognition and Related Personnel Actions), the applicant was recommended for promotion in the GAARNG to the rank/grade of CW2.  The memorandum further provided that the FRB date was 16 August 2011 with an effective date of promotion of 10 February 2011. 

10.  On 24 August 2011, the GAARNG issued Orders 236-857 promoting him to CW2 effective 10 February 2011 with a DOR of 10 February 2011.  Additional instructions in subparagraph b of the orders stated "Individual will be paid as: CHIEF WARRANT OFFICER, W2 (CW2/W2) Upon receipt of Federal Recognition.  NGB-ARH POLICY MEMO #07-026-DTD 070814, Policy to Appoint SFC to CW2.  Must have been an SFC/E7 for a period of two consecutive years prior to WOCS."

11.  On 7 March 2012, NGB issued Special Orders Number 79 AR extending him Federal recognition in the rank of CW2 effective 15 February 2012.

12.  NGR 600-101, dated 1 October 1996, prescribes policies and procedures for ARNG WO personnel management.  

	a.  Paragraph 2-10c(2) states MSG, E-8 through Command Sergeant Major (CSM), E-9 Soldiers who are eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.  

	b.  Chapter 7 states 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.  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.  Paragraph 9-15b(6) states in the case of an applicant being found qualified for Federal recognition as a CW2 in accordance with paragraph 2-10c(2), except for the successful completion of WOCS and Department of the Army MOS certification (i.e., completion of WOBC), the following statement will be entered on the NGB Form 89:

The applicant is qualified for appointment as a warrant officer in the Army National Guard and is extended temporary Federal recognition as a Warrant Officer, W1, as provided by NGR 600-101, to be effective from the date of successful completion of WOCS.  The applicant is promotable to the grade of Chief Warrant Officer, W2, to be effective from the date of the Department of the Army MOS certification without further Federal Recognition Board Action.

13.  NGB memorandum, subject:  Policy to Appoint SFC to CW2 (NGB-ARH Policy Memo #07-026), dated 14 August 2007, stated effective the date of the memorandum, States were authorized to appoint SFC to the grade of CW2 if they met the criteria below:

	a.  SFC who had served a minimum of 2 consecutive years as an SFC/E-7 could be appointed to CW2 in one of two ways:

		(1) SFC who was certified by the DA MOS proponent prior to the date of initial appointment (attendance of WOBC not required) could be appointed in the grade of CW2 upon completion of WOCS.

		(2) SFC eligible for MOS training could be promoted to CW2 after completion of WOCS and WOBC.

	b.  Appointment for MSG through CSM remained the same.

14.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's in the ARNG, dated 14 June 2011, states that ARNG WO's 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.

15.  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 WO's and promotion to higher grades, by warrant or commission, will be issued by the President.  Requests for appointment will be staffed through the Department of the Army (delegated to the Secretary of Defense), 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, on 24 August 2011, the GAARNG issued orders promoting him to CW2 effective 10 February 2011 with a DOR of 10 February 2011.    

2.  He was extended Federal recognition to the rank of CW2 effective 15 February 2012.  

3.  As a result of the 2011 National Defense Authorization Act (NDAA), 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 statutory change in the procedures for the promotion of WO's that was mandated by the 2011 NDAA that WO's 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.  There followed a period of time during which the procedures for processing WO appointment and promotion scrolls were developed and refined.

	b.  Although this process was modeled on the existing process of scrolling commissioned officer appointments and promotions, there was still a period during which the WO scrolling process was being perfected.  This development process resulted in the delay of the promotions of all ARNG WO's, and probably WO's from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.

	c.  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.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion and date of rank is appropriate and should not be changed.

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)                                         AR20130006623



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ABCMR Record of Proceedings (cont)                                         AR20130006623



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