IN THE CASE OF:  

		BOARD DATE:  23 July 2013

		DOCKET NUMBER:  AR20130008469 


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 her effective date and date of rank (DOR) for promotion to chief warrant officer four (CW4) from 18 April 2013 to 1 November 2012, the dates specified on her Montana Army National Guard (MTARNG) promotion orders.
 
2.  The applicant states:

* prior to enactment of the 2011 National Defense Authorization Act (NDAA), ARNG officers were promoted by the Chief, National Guard Bureau (NGB) and the Secretary of the Army, under the provisions of Title 32, U.S. Code
* with the signing of the 2011 NDAA into law, the authority to promote ARNG warrant officers was elevated from Secretarial level to President of the United States level
* when the new policy was signed into law, many officials were unaware of the significant changes it entailed
* the change led to a delay by the NGB in processing promotion actions while it adjusted to additional staffing requirements necessary to ensure compliance with the law
* in her case, a Federal Recognition Board (FRB) held by the MTARNG on 6 August 2012 recommended her promotion to CW4 on 6 August 2012 with an effective date and DOR of 1 November 2012
* NGB published the Federal recognition order with an effective date of 18 April 2013

3.  The applicant provides:

* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* Orders 219-009, issued by the MTARNG on 6 August 2012
* Special Orders Number 102 AR issued by NGB on 22 April 2013
* a memorandum from the Command Chief Warrant Officer of the MTARNG, dated 23 April 2013, subject:  Application for Correction of Military Record – Promotion DOR

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a warrant officer in the MTARNG.

2.  On 9 November 2000, after previous enlisted service in the ARNG, the applicant was appointed as a warrant officer one (WO1) in the MTARNG.  

3.  On 1 November 2007, she was promoted to chief warrant officer three (CW3) by the MTARNG.  

4.  On 11 May 2012, she completed the Warrant Officer Staff Course.

5.  On 6 August 2012, an FRB was held by the MTARNG to determine if she was qualified to be awarded Federal recognition as a CW4.  The board found her physically, morally, generally, and professionally qualified for Federal recognition as a CW4.

6.  Orders 219-009, issued by the MTARNG on 6 August 2012, promoted her to CW4 with an effective date and DOR of 1 November 2012.

7.  Special Orders Number 102 AR, issued by the NGB on 22 April 2013, extended her Federal recognition for her promotion to CW4, effective 18 April 2013.

8.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division at NGB.  The advisory official recommended approval of the applicant's request for an adjustment of her effective date and DOR to CW4, stating the following:

* a Federal Recognition Examining Board recommended her promotion to CW4 effective 1 November 2012 – her DOR should reflect the date she was recommended for promotion
* her promotion packet was submitted to NGB for Federal recognition on 10 August 2012 but was unnecessarily delayed through no fault of the applicant
* due to administrative error, favorable consideration should be given to adjusting her effective date and DOR for promotion to CW4 to 1 November 2012 – the date she was originally recommended for
* the State of Montana concurred with the NGB recommendation

9.  On 11 June 2013, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 17 June 2013, she stated she concurred with the recommendation for approval.

10.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) 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 warrant officer must satisfy the requirements for this promotion.  Promotions will be based on the Department of the Army proponent duty military occupational specialty (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 an FRB.

11.  National Guard Regulation 600-101, chapter 7, further states a warrant officer must complete the minimum years of promotion service shown in Table   7-1 (Minimum Time-in-Grade for Promotion), and the education requirements shown in Table 7-2 (Minimum Military Education Requirements for Promotion and Time in Current Grade Required for Course Enrollment), to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-2 states the minimum military education requirement for promotion to CW4 is completion of the Warrant Officer Staff Course.

12.  NGB Policy Memorandum 11-015 (Federal Recognition of Warrant Officers in the ARNG), dated 14 June 2011, provides that ARNG warrant officers are initially appointed and promoted by the State or Territory to which they are assigned.  The Chief, NGB, reviews and approves those actions.  In accordance with Title 10, U.S. Code, sections 571b and 12241b, all warrant officer appointments and promotions to chief warrant officer grades in the ARNG will be made by the President of the United States.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for adjustment of her effective date and DOR to CW4 was carefully considered.   

2.  The evidence of record shows she was promoted to CW3 on 1 November 2007 and she completed the Warrant Officer Staff Course on 11 May 2012.    She was favorably considered by an FRB in August 2012 that found her physically, morally, generally, and professionally qualified for Federal recognition as a CW4.  She was promoted to CW4 on 1 November 2012; however, NGB did not extend Federal recognition of her promotion until 18 April 2013.

3.  Without question, the failure to process her Federal recognition packet for her promotion to CW4 was in error and occurred through no fault of her own; however, there are some errors the Army Board for Correction of Military Records (ABCMR) may not correct.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.

4.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

5.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

6.  Consequently, and notwithstanding the advisory opinion provided by NGB, the Board cannot adjust the applicant's effective date of promotion for pay purposes, as any adjustment of her effective date would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

7.  Nevertheless, the Board may recognize this error and adjust her DOR accordingly.  Therefore, as a matter of equity, it would be appropriate to adjust her DOR to 1 November 2012, in keeping with the MTARNG's original recommendation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  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 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 to show her DOR as 1 November 2012.

2.  The Board further determined 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 correcting her effective date of promotion to CW4 or paying her any back pay or allowances as a result of these proceedings.



      ____________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)                                         AR20100000119



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ABCMR Record of Proceedings (cont)                                         AR20130008469



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