IN THE CASE OF:	   

		BOARD DATE:	  2 June 2013

		DOCKET NUMBER:  AR20130010220 


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 reconsideration of his earlier request to correct his military records by changing the date of his promotion for chief warrant officer two (CW2) from 6 April 2012 to 17 July 2011.

2.  The applicant states his promotion date for CW2 needs to be corrected from 
6 April 2012 to 17 July 2011. The error was caused by a failure in the process to submit his Federal Recognition upon completion of Warrant Officer Candidate School (WOCS).  When his promotion packet for CW2 was rejected in May 2011 it was realized that he had never received a National Guard Bureau (NGB) Form 0122E (Announcement of Federal Recognition Orders) for warrant officer one (WO1).  His WO1 packet was submitted in September 2011.  It took about 3 months to be approved.  After the WO1 packet was approved, his CW2 packet was resubmitted which took approximately 5 months, resulting in a delay of his promotion date for CW2 for about 9 months.  His date of rank for WO1 was corrected to 17 July 2009.  The error was not due to any fault of his.  Not only has he experienced monetary loss due to the difference in pay, but more importantly he has a loss of time in grade.  While it may not have a great affect on him now it will in the future because there was a large influx of WO1s, in maintenance, who attended WOCS within 4 months of him.  Eventually, he will be competing with them for slots and some will have more time in grade than he has due to this error.  He believes this has been a great injustice to him and his career and that it should certainly be corrected.



3.  The applicant provides copies of: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty) Member Copies 1 and 4, ending on 16 July 2009
* Statement of Understanding for Appointment as a Warrant Officer, dated 17 July 2009
* DA Form 71 (Oath of Office - Military Personnel) for WO1, dated 17 July 2009
* NGB 337 (Oaths of Office) for WO1, dated 17 July 2009
* DA Form 71, for CW2, dated 17 July 2011
* NGB Special Orders Number 350 AR, dated 28 December 2011
* NGB Special Orders Number 12 AR, dated 11 January 2012
* NGB Special Orders Number 116 AR, dated 10 April 2012
* Email communication, dated 19 February 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011689, on 11 September 2012.

2.  The above three NGB special orders and the email communication dated 
19 February 2013 are new evidence requiring consideration by the Board.

3.  The original record of proceedings (ROP) considered the same argument as the applicant now puts forth in this case.  The ROP noted that his initial appointment to WO1 was not federally recognized until 2011.  However, the changes to the warrant officer promotion process resulted from the 2011 National Defense Authorization Act (NDAA) requiring Presidential approval of all initial appointments and subsequent promotions of warrant officers.  This authority has been delegated to the Secretary of Defense, and no lower.  There was a period of time when procedures for processing appointments and promotion scrolls were developed and refined.  During this period there were some delays in promotion.  The Board denied the applicant's request to change the date of his promotion to 17 July 2011.

4.  NGB Special Orders Number 350 AR, dated 28 December 2011, show the applicant was initially appointed to WO1 effective 17 July 2011.

5.  NGB Special Orders Number 12 AR, dated 11 January 2012, changed the applicant's effective date for WO1 from 17 July 2011 to 17 July 2009.

6.  NGB Special Orders Number 116 AR, dated 10 April 2012, show the applicant was promoted to CW2 effective 6 April 2012.

7.  An email communication, as provided by the applicant, dated 19 February 2013, from the NGB states, in effect, that the applicant's promotion packet for CW2 was originally submitted in May 2011, but it was rejected because his initial appointment had not been federally recognized.  The author of the email states the Federal Recognition Section confirmed that the applicant should have been placed on the fiscal year 2011 scroll that was submitted to the Pentagon on 
26 August 2011 and approved by the Secretary of Defense on 28 October 2011.  The argument is made that it is reasonable and consideration should be given to the fact that if the applicant's initial appointment had not been overlooked he could have been processed on this earlier scroll with an effective date of 
28 October 2011.

8.  National Guard Regulation 600-101 (Warrant Officer - Federal Recognition and Related Personnel Actions) prescribes the policies and procedures for Army National Guard (ARNG) warrant officer personnel management.  Paragraph 7-1 of this regulation specifies that appointment and promotion of warrant officers in the ARNG is a function of the State.  A WO1 must complete a minimum of 2 years time in grade for promotion to CW2.

9.  National Guard Regulation 600-101 also specifies that these appointments and promotions must be federally recognized.  Warrant officers may be examined for promotion not earlier than 3 months in advance of completing the prescribed promotion requirements so that, if recommended by a Federal Recognition Examining Board (FREB), promotion may be effected on the date the promotion requirements are met.  FREB's convening to examine promotion of warrant officers who have passed their promotion eligibility date, may, if so recommended and determined fully qualified on their promotion eligibility date, consider granting temporary federal recognition retroactive to that date, but not earlier than 90 days from the date of the FREB.

10.  The NDAA for Fiscal Year 2011, Subject: Changes to Warrant Officer Federal Recognition Process, dated 22 July 2011, 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 to be completed.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was promoted to CW2 effective 17 July 2011.

2.  The applicant makes essentially the same argument as he did in the original case.  He contends that his promotion to CW2 was delayed because his initial appointment was not processed until 2011.  He further contends that he should not be penalized because the error was not due to any fault on his part.

3.  The evidence clearly shows the applicant's initial appointment was not federally recognized on orders until 2011; they had to be corrected to show his effective date as 2009.  Furthermore, there is no doubt that these errors contributed to his subsequent delay in promotion for CW2.

4.  The argument put forth by the NGB stating it is reasonable and consideration should be given to the fact that if the applicant's initial appointment had not been mishandled, he could have been processed on an earlier scroll and given an earlier promotion is noted.

5.  Unfortunately, it makes little difference whether the applicant's promotion was delayed due to a change in law and procedures, or was due to errors by the NGB.  This Board cannot correct an earlier scroll to add his name as is implied in the email from the NGB.  The scroll is not an Army record; the Board has no authority to correct the scroll.

6.  In view of the above, the applicant's request should be denied.

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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120011689, dated 11 September 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)                                         AR20130010220



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ABCMR Record of Proceedings (cont)                                         AR20130010220



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