IN THE CASE OF:	 

		BOARD DATE:	    14 January 2014

		DOCKET NUMBER:  AR20130007527 


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 to July 2012.

2.  The applicant states:

   a.  He became eligible for promotion to CW2 in May 2012; however, he was deployed with his unit in Afghanistan from January through November 2012 and due to illness, he was unable to take the Army Physical Fitness Test (APFT) until July 2012.

   b.  After passing the APFT, he met all of the requirements for promotion to CW2.  Unfortunately his promotion and pay did not take effect until January 2013, six months after he had become fully eligible.  He believes his promotion was delayed due to the stress of deployment to a combat zone.  He knows for a fact that the disconnect was not due to his unit's administration because he was informed by the S-1 that his paperwork had been submitted to the proper authorities as soon as he became eligible.

3.  The applicant provides:

* Orders 237-018
* 2 memoranda
* Special Orders Number 14 AR
* National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board)
* Orders 125-009

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant executed an oath of office in the Michigan ARNG (MIARNG) on 4 May 2010.  

2.  On 5 May 2010, the MIARNG published Orders 125-009 appointing him in the grade of rank of warrant officer one (WO1) effective 4 May 2010.

3.  On 26 May 2010, the NGB published Special Orders Number 109 AR extending him Federal recognition (FEDREC) for his initial appointment in the ARNG, effective 4 May 2010.

4.  He attended and successfully completed the CH-47D, Track Class #11-009 from 4 May 2010 through 29 October 2011.

5.  His record shows he served in Afghanistan for the period 20 February through                     10 November 2012.

6.  The applicant provides a copy of his NGB Form 89 which shows he was recommended to receive FEDREC for his appointment to CW2 on 23 August 2012.

7.  On 24 August 2012, the MIARNG published Orders 237-018 promoting him to CW2 effective 23 August 2012.  The order states, "The effective date of promotion in the Reserve of the Army and corresponding date of rank will be the date Chief, NGB extends FEDREC of State promotion." 

8.  On 14 January 2013, NGB Special Orders Number 14 AR were published extending FEDREC to the applicant for his promotion to CW2 effective 10 January 2013 (141 days after he was recommended to receive FEDREC for his appointment to CW2).  

9.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 19 June 2013, who recommended disapproval of the applicant's request and further opined:

   a.  The applicant states his promotion to CW2 was delayed due to his deployment and illness.  The applicant was mobilized with his unit in support of Operation Enduring Freedom from 11 December 2011 through 26 January 2013.  He met the two year requirement for promotion to CW2 on 4 May 2012.  However, the applicant states he did not have a valid APFT on record until July 2012.

   b.  According to National Guard Regulation 600-101 [Warrant Officers - Federal Recognition and Related Personnel Actions], paragraph 7-7, "Eligibility for promotion (a) To be considered for FEDREC and concurrent Reserve of the Army promotion following State promotion to fill a unit vacancy, an ARNG warrant officer must - (5) Have passed an APFT within the time frame prescribed below (a) Six month[s] from promotion effective date for AGR Soldiers.  (b) Twelve months from promotion for non-AGR Soldiers.  NOTE:  A warrant officer who has failed to take the APFT should be flagged in accordance with Army Regulation 600-8-2 [Suspension of Favorable Personnel Actions (Flag)] and is not eligible for promotion until such time [as] he/she has satisfactorily passed the standard or an alternate APFT."  Personnel Policy Guidance (PPG) paragraph  13-11 does not authorize exception[s] to policy for promotions due to [any reason for not taking the] APFT.

   c.  Per State order number 237-018, the applicant was boarded by the MIARNG on 23 August 2012.  According to the FEDREC Section at the NGB, the packet was received at NGB on 24 August 2012.  It was processed on               18 September 2012.  The packet was placed on the scroll for promotion on       18 October 2012.  The applicant's packet was at the FEDREC Section for         38 business days.  The scroll was approved by the Secretary of Defense (SECDEF) on 14 January 2013, and took 53 days to process at the Pentagon.

   d.  Based on the evidence provided there was no delay in the promotion process for the applicant.  He was boarded by the MIARNG in accordance with National Guard Regulation 600-101 and his packet was processed and approved by the SECDEF within 91 days of receipt from the State.

   e.  The MIARNG had not provided additional input on the case.
   
10.  On 26 June 2013, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 9 July 2013, the applicant stated he disagreed with the advisory opinion because a key component was missing from the opinion.  He states he was due for promotion like all other warrant officers in his class in May 2012.  His unit was deployed to Afghanistan and he was on active duty orders working long hours.  Paperwork and APFTs were not at the top of their priorities.  He further states that he may be of some fault; however, he was not aware that he would be penalized so much compared to his peers who were stateside and received timely promotions.
11.  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 FEDREC 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 FEDREC Board.

12.  A warrant officer 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 Warrant Officer Basic Course) of National Guard Regulation 600-101 to attain eligibility for promotion and receive FEDREC in the higher grade.  Additionally, a warrant officer must be medically fit and meet the height and weight standards as well as pass the APFT.

13.  NGB Policy Memorandum 11-015, Subject: FEDREC of warrant officers in the ARNG, dated 14 June 2011, states that ARNG warrant officers 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 warrant officer 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 warrant officers and promotion to higher grades, by warrant or commission, will be issued by the President (delegated to the SECDEF).  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.

14.  Section 512 of Public Law 112-239, dated 2 January 2013, provides for the automatic FEDREC 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 warrant officer 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 from 10 January 2013 to July 2012 has been carefully examined.

2.  The evidence of record shows the applicant's DOR as a WO1 was 4 May 2010.  He was issued a State order promoting him to CW2 effective 23 August 2012.  The NGB issued him FEDREC orders promoting him to CW2, effective 10 January 2013.

3.  It appears the applicant was fully eligible for promotion upon the successful completion of his APFT in July 2012; however, as a result of the 2011 National Defense Authorization Act the promotion of a WO1 to CW2 is now issued by the President of the United States and is delegated to the SECDEF.

4.  However, Section 512 of Public Law 112-239, dated 2 January 2013, provides for the automatic FEDREC and promotion of ARNG warrant officers 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 warrant officer has completed 24 months TIG if the warrant officer has remained in an active status since they were so recommended.

5.  In view of the foregoing and notwithstanding the advisory opinion, the applicant is entitled to partial relief.  Therefore, his records should be corrected to show his effective date for promotion and DOR to CW2 as 2 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:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X_____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected to show he was promoted to CW2 and granted FEDREC for this promotion with an effective date and DOR of 2 January 2013; and by DFAS paying him any back pay and allowances to which he is entitled 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 of promotion and DOR to CW2 to July 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)                                         AR20130007527





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ABCMR Record of Proceedings (cont)                                         AR20130007527



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