IN THE CASE OF:
BOARD DATE: 20 February 2014
DOCKET NUMBER: AR20130007741
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 and promotion effective date of chief warrant officer two (CW2) from 28 December 2012 to 4 May 2012, with entitlement to back pay.
2. The applicant states he was fully eligible for promotion to CW2 on 4 May 2012. The letter of recommendation and all other required documents for the Federal Recognition Board were submitted on time. The letter of recommendation was signed on 8 March 2012.
3. The applicant provides copes of his:
* 2012 Recommendation for Promotion of Warrant Officer memorandum
* 2012 National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board)
* 2012 CW2 promotion orders
* 2013 NGB Special Orders
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed in the Puerto Rico Army National Guard (PRARNG) as a warrant officer one on 4 May 2010, with prior enlisted ARNG service.
2. On 8 March 2012, the applicants company commander submitted a memorandum recommending the applicant for promotion to CW2. The company commander stated the applicant was fully qualified for promotion to the next higher grade.
3. On 17 July 2012, a Federal Recognition Examining Board convened and found the applicant qualified for promotion to CW2.
4. Orders Number 208-507 were issued by the Joint Forces Headquarters, PRARNG, on 26 July 2012, promoting the applicant to CW2 with a date of rank and effective date of 17 July 2012. The orders stated he would not be paid as promoted until Federal Recognition was issued.
5. Special Orders Number 6 AR were issued by the NGB, on 8 January 2013, extending the applicant Federal Recognition and promoting him to CW2 effective 28 December 2012.
6. NGB Policy Number 11-051, dated 14 June 2011, governs Federal Recognition of initial appointments and appointments to a higher grade for warrant officers. This policy treats an appointment to a higher grade as a promotion. This policy reflects changes to the law contained in the 2011 National Defense Authorization Act that amended Title 10, U.S. Code (USC), section 12241, concerning the approval authority concerning warrant officer promotions and appointments.
7. Title 10, USC, section 12241, as amended, provides that appointments made in a permanent reserve grade of chief warrant officer shall be made in the same manner as prescribed for regular warrant officer grades by Title 10, USC, section 571(b). This provision states appointment in the grade of regular warrant officer grades shall be made by commission by the President. This authority has been delegated to the Secretary of Defense.
8. National Guard Regulation 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions), chapter 8, establishes the policies and procedures for promotion of officers in the ARNG. The regulation states that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid for the higher rank. The NGB has advised in similar cases such as this that recommendations for promotion must be processed through the NGB staff to obtain approval of the promotion by the President, and that the approval process normally takes approximately 3 months (90 days).
DISCUSSION AND CONCLUSIONS:
1. With respect to his date of rank for CW2, the evidence shows a Federal Recognition Examining Board held on 17 July 2012 found the applicant qualified for promotion to CW2. The NGB extended Federal Recognition and promoted him to CW2 effective 28 December 2012.
2. In accordance with the pertinent regulation, the approval process for extension of Federal Recognition normally takes approximately 3 months. In view of the foregoing, his date of rank for CW2 should be corrected to 17 October 2012, 90 days after the approval of his Federal Recognition Examining Board.
3. With respect to his effective date for CW2, there is no provision of law applicable to adjust the effective date, as in doing so it would amend an action by the Secretary of the Defense. The Board does not have the authority to correct actions by the Secretary of Defense. Therefore, he is not entitled to correction of his effective date for CW2 with entitlement to back pay.
4. In view of the foregoing, his records should be corrected as recommended below.
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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by showing the applicant was promoted to chief warrant officer two with a date of rank of 17 October 2012.
2. The Board further determined that the evidence presented was 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 correction of his records to show he was promoted to chief warrant officer two with an effective date earlier than 28 December 2012 with entitlement to back pay.
_______ _ _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) AR20130007741
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